T 


THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 


W-A'^S^^""^ 


A  TREATISE 


ON  THE 


LAW  OF  NOTICE 


AS 


AFFECTIiXG  CIYIL  RIGHTS  AND  EEMEDIES. 


BY 

WILLIAM  P.  WADE. 


SECOND  EDITION. 


CHICAGO: 

callagha:n^  akd  company. 

1886. 


Entered  according  to  Act  of  Congress  in  the  year  eighteen  hundred  and  eighty-six,  by 

W.  P.  AVADE, 
in  the  office  of  tlie  Librarian  of  Congress,  at  'Washington,  D.  C. 


T 


BAXID  ATWOOD, 

Printer  axd  Stereotyper, 

madison,  wis. 


<? 
^ 


TO 

SEYMOUR  D.  THOMPSON,  ESQ., 

OF  THE  ST.   LOjnS  BAK, 

THIS  BOOK  IS  rNSCRIBED  IN  ACKNOWLEDGMENT  OF  HIS 
VALUABLE    LABORS    AS    A 

LEGAL   JOURNALIST,    CONTRIBUTOR    AND    AUTHOR, 

AS  A  TEIBUTB  TO  HIS  WORTH  AS  A  CITIZEN  AND  A  LAWYER, 
AND  ALSO  AS  A  TOKEN  OF  THE  WARM  PER- 
SONAL REGARD  ENTERTAINED 
FOR  HIM  BY 

THE  AUTHOR. 


6.-2  06  i-/ 


PREFACE  TO  FIRST  EDITION. 


A  custom  has  grown  up  among  authors,  especially  new 
authors,  of  apologizing  to  the  members  of  the  profession  for 
making  still  another  new  book.  This  portion  of  the  cus- 
tomary preface  will  be  omitted  here,  because  in  the  first 
place  there  seems  no  one  to  whom  such  an  apology  is  due. 
Those  who  have  no  use  for  a  text-book  upon  the  subject  of 
ISToTicE  have  no  right  to  resent  its  publication,  and  those  who 
feel  the  want  of  it  will  require  no  excuse  for  an  attempt  to 
supply  that  want.  Their ,  criticism  will  only  be  directed  to 
the  manner  of  executing  the  work.  In  the  second  place, 
the  writer  had  experienced  no  inconsiderable  annoyance 
and  vexation  in  his  own  practice,  which  might  have  been 
avoided  had  there  been  any  work  at  all  upon  the  subject, 
and  commenced  the  collection  of  materials  for  the  follow- 
ing pages  under  the  belief  that  such  a  book  was  necessary, 
when  there  was  no  prospect  of  the  want  being  supplied  by 
any  one  else.  Having  undertaken  the  task,  influenced  b}^ 
this  conviction,  apologies  for  doing  so  can  hardly  be  in 
order.  For  what  the  book  lacks,  either  in  thoroughness  or 
skillfulness  of  treatment,  or  in  convenience  of  arrangement, 
the  author  is  profoundly  regretful,  and  awaits  the  criticism 
and  candid  suggestions  of  his  readers  with  an  abiding  faith 
that  they  will  be  in  the  main  just  and  fair.  But  he  would 
ask  them  to  consider,  particularly  with  respect  to  the  ar- 
rangement of  topics,  that  he  was  Avithout  a  model  or  guide 
which  contained  a  single  suggestiopi  in  this  direction. 
Those  upon  whom  he  felt  at  hberty  to  call  for  advice  were 
either  too  busy  to  consider  the  matter  with  care,  or  ac- 
knowledged their  inability  to  make  suggestions  which  were 
even  satisfactory  to  themselves.     Some  of  the  dilHculties  in 


VI  PREFACE   TO    FIEST   EDITIOX. 

the  way  of  an  easy  solution  of  this  problem  were  made  ap- 
parent by  the  oft-repeated  interrogatory  of  those  to  whom 
the  title  of  the  proposed  book  was  explained  —  "  Notice  of 
Avhat?"  In  arranging  the  different  chapters  and  subdivis- 
ions the  intention  has  been  to  group  the  topics  according  to 
their  relations  to  each  other,  and  to  present  all  the  law 
upon  each  without  unnecessary  repetition.  That  these 
purposes  have  been  measurably  thwarted  will  not  be  a 
matter  of  surprise  to  those  who  have  critically  examined 
many  law  books.  In  endeavoring  to  carry  out  this  plan  it 
was  found  necessary  to  travel  over  a  great  deal  of  ground 
and  accumulate  no  inconsiderable  portion  of  matter  with- 
out regard  to  the  order  of  arrangement,  and  when  arranged 
a  great  deal  of  what  had  been  written  had  to  be  re-written 
to  make  it  conform  to  the  relative  positions  of  the  chapters. 
After  all  the  Avriter  feels  bound  to  confess  that  the  arrange- 
ment finally  determined  upon  is  to  some  extent  arbitrary. 
Those  who  examine  the  Avork  will  doubtless  find  many 
other  features  where  improvements  may  be  suggested.  By 
enlarffinij  the  volume,  useful  matter  might  be  added  both  to 
tlie  text  and  to  the  notes.  But  laboring  under  the  impres- 
sion that  there  was  a  hmit  beyond  which  such  a  work  could 
not  with  propriety  be  extended,  many  merely  cumulative 
authorities,  and  those  illustrating  points  of  doubtful  utility, 
have  been  rejected.  If  the  most  important,  and,  in  fact,  all 
the  more  important  cases  have  not  been  cited,  it  is  for  the 
reason  that  the  author  was  unable  to  find  them.  If  any 
have  found  their  Avay  into  the  table  of  cases  w^hich  have 
not  been  carefully  examined  and  considered  in  connection 
with  the  doctrine  laid  down  in  the  text  which  they  are 
cited  to  illustrate  or  confirm,  the  number  is  very  small  in- 
deed, and  their  presence  is  owing  to  inadvertence,  and  not 
to  a  design  on  the  part  of  the  writer  to  impose  upon  the 
profession  doubtful  authorit}^  for  the  mere  purpose  of  swell- 
ing the  list  and  making  a  show  of  great  industry. 

There  has  been  an  endeavor  in  the  following  pages  to 
present  as  much  of  the  law  bearing  upon  the  subject  of 
Notice  as  could  be  compressed  within  what  was  considered, 


PKEFACB   TO    FIKST   EDITION.  VII 

in  the  light  of  current  criticism,  a  proper  space  consistent 
with  a  fair  and  reasonable  degree  of  comment  and  illustra- 
tion. A  glance  at  the  table  of  contents  will  show  the  dif- 
ferent branches  of  the  law  into  which  the  doctrine  has 
found  its  way,  and  exerted  a  distinct  influence  in  determin- 
ing the  conflicting  rights  of  parties  litigant.  No  depart- 
ment of  jurisprudence  where  notice  has  been  considered 
essential,  either  to  bind  a  party  or  release  him  from  obliga- 
tion, has  been  purposely  omitted. 

In  preparing  the  book  for  publication,  no  model  has  been 
followed,  for  the  reason  that  there  was  no  model  to  follow, 
and  not  because  the  author  desired  to  make  innovations. 
In  one  respect,  however,  there  has  been  an  attempt  to  avoid 
what  in  some  law  books  seems  to  a  certain  extent  a  matter 
of  necessity,  and  in  others  a  most  offensive  vice  —  that  is, 
the  insertion  of  aU  the  explanatory  portion  of  the  matter 
in  the  notes.  The}^  leave  nothing  but  the  dry  husks  of  the 
subject  in  the  text,  making  up  for  the  baldness  of  treatment 
in  the  author's  original  composition,  by  profuse  quotation  in 
the  notes,  so  extended  and  discursive  as  to  weary  the  eye 
and  puzzle  the  understanding  of  the  reader.  The  peculiar 
nature  of  a  subject  may  be  such  as  to  render  this  sort  of  an- 
notation necessary ;  but  where  the  writer  of  this  book  has 
varied  from  the  practice  of  incorporating  in  the  text  all 
that  seemed  essential,  leaving  nothing  for  the  notes  but  the 
citation  of  cases,  it  was  because  the  matter  had  been  over- 
looked or  was  suggested  so  late  as  to  render  its  insertion, 
according  to  the  original  plan,  impracticable  without  more 
labor  than  the  importance  of  this  feature  of  the  work 
would  seem  to  warrant.  Every  effort  has  been  made  to 
eliminate  all  errors  and  mistakes,  and  to  supply  all  omis- 
sions. The  book  is  offered,  not  in  the  belief  that  the  task 
undertaken  has  been  perfectly  executed,  but  in  the  convic- 
tion that  it  contains  nothing  but  good  law,  and  is  so  ar- 
ranged, and  provided  with  facilities  for  reference,  as  to  be 
of  considerable  use  to  an  overworked  profession. 

W.  P.  W. 

St.  Loms,  J%  13, 1878. 


PREFACE  TO  SECOND  EDITION. 


In  preparing  a  second  edition  of  this  work,  I  have 
endeavored  to  keep  in  view  the  suggestions  kindly  made 
by  many  of  my  professional  brethren  from  time  to  time, 
as  well  as  some  of  the  criticisms  of  the  legal  press.  Un- 
fortunately, however,  some  of  these,  which  were  carefully 
noted  when  fresh,  have  been  lost  sight  of  in  consequence 
of  a  change  of  residence,  and  the  loss  of  notes  and  mem- 
oranda made  at  the  time. 

The  text  has  received  additions  to  the  extent  of  about 
one  hundred  and  thirty  pages,  and  a  large  number  of  addi- 
tional cases  have  been  examined  and  cited.  Some  changes 
have  also  been  made  in  the  division  of  the  matter  into 
chapters ;  but  with  all  these  changes  the  original  numbers 
of  sections  (§§)  have  been  preserved,  and  added  sections 
are  distinguished  by  the  addition  of  letters.  The  appear- 
ance of  the  book,  and  possibly  its  excellence  in  other 
respects,  might  have  been  enhanced  by  re-writing  and  re- 
numbering many  of  these  sections,  and  carrying  the  alter- 
ations through  the  entire  work ;  but  this  more  symmetrical 
treatment  of  the  subject  would  scarcely  have  compensated 
for  the  abandonment  of  the  old  numbers  to  which  refer- 
ence has  been  made  where  the  book  has  been  cited.  I 
have  still  adhered  to  the  original  design,  which  was  to 
present  the  law  upon  aU  branches  of  the  subject  of  Notice 
in  a  form  best  adapted  to  the  wants  of  the  practitioner. 
It  is  intended  to  throw  some  light  upon  every  case  where 
the  rights  of  parties  may  turn  upon  the  question  whether 
one  or  the  other  has  received  notice,  or  in  which  a  ques- 
tion of  notice  in  any  of  its  multitudinous  phases  may  arise. 


X  PREFACE   TO    SECOND    EDITION. 

In  carrying  out  this  plan  in  the  second  edition,  I  have 
endeavored  to  meet  the  expectations  of  every  one  who 
may  resort  to  these  pages,  even  tentatively,  if  not  in  fur- 
nishing: the  kind  of  law  of  which  he  is  in  search,  at  least 
something  touching  the  particular  subject  of  inquiry. 

For  the  magnanimous  and  gracious  reception  accorded 
by  the  profession  and  the  press  to  this  my  first  effort  in 
the  Avay  of  authorship,  I  wish  to  return  my  sincere  thanks. 
I  also  desire  to  thank  the  many  individuals  from  whom  I 
have  received  personal  letters  of  acknowledgment  and 
valuable  suggestions  of  improvement. 

With  the  hope  that  the  work  has  been  improved  by 
revision,  it  is  again  submitted  to  the  profession. 

W.  P.  WADE. 

Los  Angeles,  Cal.,  March  1,  1886. 


CONTENTS. 


CHAPTER  I. 

THE  DIFFERENT  KINDS  OF  NOTICE. 

PAGE. 

I.  Actual  Notice,      -------1 

II.  Consti'uctive  Notice,  ...  -  -  27 

CHAPTER  II. 
Notice  to  Purchasers  of  Different  Kinds  op  Property,       -     36 

CHAPTER  HI. 

notice  by  registration  of  instruments. 

I.  The  General  Scope  and  Operation  of  the  Statute,  -  69 

II,  Recordable  Instruments,  .  .  _  .  -       80 

III.  Statutory  Prerequisites  to  Recording,         -  -  .  84 

IV.  Errors  in  the  Record,        ------       93 

V.  Errors  by  the  Party  Filing  the  Instrument,  -  -  106 

VI.  Conflicting  Titles  Affected  by  Priority  of  Registration,         -     114 
Vn.  Other  Notice  Considered  in  Connection  with  Registration,         133 

CHAPTER  IV. 
Notice  by  Possession,  -  -  -         -         -         -     150 

CHAPTER  V. 
Notice  from  Title  Papers,        -----  171 

CHAPTER  VI. 
Lis  Pendens,      -  -  --  -  -  -  -187 


XU  CONTENTS. 

CHAPTER  VIL 

NOTICE  BY  WHICH  CERTAIN  LIABILITIES  AKE  CREATED. 

PAGE. 

I.  Notice  of  Acceptance  of  Proposals,      -           -           -           -  206 

n.  Notice  of  Guaranty,             -           -           -       -    -           -  210 

m.  Notice  of  Assignment,     ------  234 

IV.  Notice  to  Carriers  and  Other  Bailees,         -           -           -  246 
V.  Notice  of  Suit  in  Ejectment  to  Wai'rantor,     -           -           -  263 

VI.  Notice  by  Which  Liabihty  for  Tort  May  be  Fixed,           -  269 

Vn.  Notice  by  Which  Certain  Contract  LiabiUties  May  be  Fixed,  274 

CHAPTER  VIII. 

NOTICE  BY  WHICH  LIABILITY  IS  EXTINGUISHED  OR  MODIFIED. 

I.  Dissolution  of  Partnership,        -----  280 

II.  Notice  by  Carriers  Limiting  Their  Liability,         -           -  306 

HI.  Landlord  and  Tenant,     -           -           -           -           -           -  335 

CHAPTER  IX 

PRINCIPAL  AND  AGENT. 

I.  Notice  of  Agency,           -           -           -           -           -           -  365 

n.  Notice  to  an  Agent,   ------  380 

ni.  Notice  by  an  Agent,        -  -  -  -  -  -401 

CHAPTER  X. 

NOTICE  OP  DISHONOR  OF  COMMERCIAL  PAPER. 

I.  By  Whom  Given,             -           -           -           -           -           -  405 

n.  To  Whom  Given,       ------  417 

m.  Time  of  Giving  Notice,  -           -           -           -           -           -  434 

IV.  Manner  and  Mode,     ------  455 

V.  Waiver  and  Excuse,        -           -           -           -           -           -  497 

CHAPTER  XI. 

PUBLICATION  OF  NOTICES. 

I.  Original  Process,  -------  537 

n.  Judicial  Sales,             ------  557 

HI.  Non-Judicial  Involuntary  Sales,            -           -           -           -  564 

rv.  IMiscellaneous  Proceedings,  -           -          -          -          •   _  570 


CONTENTS.  Xm 

CHAPTER  Xn. 

PRACTICE  AND  PLEADINa. 

' PAGE. 

I.  Original  Process,  -------  576 

n.  Notice  of  Trial, 588 

III.  Notice  of  Motions  and  Other  Interlocutory  Proceedings,     -  596 

rV.  Notice  of  Appeal, 606 

V.  Notice  of  Taking  Depositions,  -           -           -           -           -  613 

VI.  Notice  to  Produce  Books  and  Papers,         -           -           -  630 

Vn.  Service, 648 

Vni.  The  Return, 677 

IX.  Pleading, 690 

CHAPTER  xm. 

Facts  of  Which  Coubts  Take  Judicial  Notice,  -          -          -  701 


TABLE  OF  CASES  CITED. 


A. 


Gerality,  4  Jr.  Ch.  23, 
371, 
674, 
150, 
446, 


Abbot  V. 

§30. 
Abell  V.  Han-is,  11  GUI  &  J, 
§280. 
V.  Howe,  43  Vt.   403,   §§ 
688,  689. 
Abrahams  v.   Stokes,  39  Cal. 

§  1209. 
Abranis  v.  Sheehan,  40  Md. 

§96. 
Acer  V.  Westcott,  1  Lans.  193;  S. 

C.  46  N.  Y.  384,  §  329. 
Adams'  Appeal,  1  Pa.  St.  447,  §  96. 
Adams    v.    Darby,    28    Mo.,    163, 
§  1009. 
V.  Jones,  12  Pet.  207,  §  407. 
V.  Leavery,  20  Conn.  72,  §  436. 
V.  Otterback,     15     How.     539, 

§  480o. 
V.  Peck,  4  la.  551,  §1242. 
V.  Rodermel,  19  Ind.  339,  §  431. 
V.  Torbet,  6  Ala.  865,  §  738. 
V.  Wright,  14  Wis.  408,  §§  788, 
789,  856,  859. 
Adamis  Ex.  Co.  v.  Guthrie,  9  Bush, 
78,  §§  553,  555. 
V.  Haynes,    42  Dl.  89,  §§  553, 

555 
V.  Loeb",  7  Bush,  501,  §  553. 
V.  Stattaners,  61  111.  184,  §  555. 
Addison  v.  Cox,  L.  R.  8  Ch.  79, 

8  433. 
Adm'rs  of  Carson  v.  Phelps,  40  Md. 

97,  §  225. 
Adriance  v.  Hafkemeyer,  39  Mo. 
134,  §  606. 
V.   McCafferty,     2    Rob.     153, 
§  1054. 
Agra  Bank  v.  Barry,  L.  R.  7  H.  L. 

135,  §  109. 
Aguirre  v.  Parmelee,  22  Conn.  473, 

§464. 
Aicardi  v.    Strang,    38    Ala.    326, 
§  1253. 


Aickles'  Case,  1  Leach  Cr,  Cas.  330. 

§  1262. 
Aiken  v.   Thompson,   43    la.    606, 

§481. 
Ainsley  v.  Boynton,  2   Barb.  258, 

§431. 
Airey  v.  Pearson,  37  Mo.  424,  §  937. 
Alabama,  etc.  R.  Co.  v.  Kidd,  35 

Ala.  209,  §  568. 
Alabama  Gold  Life  Ins.  Co.  v.  Cobb, 

57  Ala.  547,  §  1410. 
Alderson  v.  Ames,  6  Md.  52,  §§  113, 
254. 
V.  BeU,  9  Cal.  315,  §  1413. 
V.  Pope,  1  Camp.  404,  §  525. 
Aldricks  v.  Higgins,  16  S.  &  R.  212, 

§  405. 
Alexander  v.  Alexander,  5  Pa.  St. 
277,  §  1232. 
V.     Burnham,    18     Wis.     199, 

§  1412. 
V.    Milwaukee,    16    Wis.    247, 

§  1404. 
V.  Qaigley's  Ex'rs,  2  Duv.  (Ky.) 

339,  §  1143. 
V.  Webster,  6  Md.  359,  §  113. 
Alford  V.  State,  8  Tex.   App.  545, 

§  1412. 
Allday  v.  Great  West.  R'y  Co.  11 

Jur.  N.  S.  12,  §  560. 
Allegheny  v.  Nelson,  25  Pa.  St.  332, 

§  1408. 
Allen,  In  re,  1  Ir.  R.  Eq.  455,  §  246. 
Allen  V.   Anthony,  1  Meriv.   282, 
§§  65a,  281,  282. 
V.  Avery,  47  Me.  287,  §  815. 
V.  Edmunson,  17  L.  J.  N.   S. 
Exch.  of  PI.  291 ;  2  Exch. 
719,  §  1397. 
V.  Hill,  16  Cal.  113,  §  1324. 
V.  Holding,  29  Ga.  485,  §  225. 
V.  Hubert,  49  Pa.  St.  259,  §  422. 
V.  Jaquish,  21  Wend.  628,  §  596. 
V.  Knight,  5  Hare,  272,  §§  47, 

48,  65a. 
V.  MandvUle,  26  Miss.  397,  §  348. 


XVI 


TABLE   OF   CASES   CITED. 


Allen  V.  Mercier,  1  Ash.  103,  §  464. 
V.   Moss,   27  Mo.  354,    §§  127, 

211. 
V.  Ogden,  1  Wash.  C.  Ct.  174, 

§  663. 
V.  Pike,  3  Cush.  238,  §  388. 
V.  Pool,  54  Miss.  323,  §§  65a, 

307,  348,  674. 
V.  Rightmere,   20  Johns.    365, 

§§  394,  396. 
V.  Sanders,  2  Bibb,  94.  §  48. 
V.  SchaiTinghausen,  8  Mo.  App. 

229.  §  1410. 
V.  Seckham,  L.  R.  11   Ch.    D. 
790,  §  65a. 
Aliens  Lessee  v.  Parish,  3  Ohio,  107, 

§225. 
Allman    v.    Owen,    31    Ala.    167, 

^  1415. 
Alvis  V.  MoiTison,  63  111.  181,  §  157. 
Alvord    V.    Collin,    20    Pick.   418, 

§  1109. 
American  Ex.  Co.  v.  Bank,  69  Pa. 

St.  394,  §  558. 
Ames  V.  N.  Y.  Union  Ins.  Co.  14  N. 

Y.  253,  §8  672,  689. 
Amidown  v.   Osgood,  24  Vt.  278, 

§§  486,  515,  522. 
Amoskeag  Bank  v.  Moore,  37  N.  H. 

539,  §  1023. 
Amsbaugh  v.  Gearhart,  11  Pa.  St. 

482,  §  422. 
Anchor  Line  v.  Dater,  68  HI.  369, 

§555. 
Anderson  r.  Anderson,  23  Tex.  639, 
§  1405.% 
V.    Applegate,     13    Ind.     339, 

§  1257. 
V.    Baughman,    6    Mich.    298, 

§  1331. 
V.  Biddle,  9  Mo.  580,  §  1405. 
V.   Blakely,   2  W.   &    S.    237, 

§405. 
V.  Brown,  16  Tex.,  554,  §  1152. 
V.  Cape  Fear,  etc.  Co.  64  N.  C. 

399,  8  480fc. 
V.     Prindle,     23    Wend.     616, 

§§  611,  613. 
V.  Van  Allen,    13  Johns.  343, 
§440. 
Andrews   v.   Boyd,   3    Mete.    434, 
§942. 
V.  Burns,  11  Ala.  691,  §  96. 
V.  Gillespie,  47  N.  Y.  487,  §  431. 
V.  Kneeland,  6  Cow.  354,  §  652. 
V.  McCoy,  8  Ala.  920,  §  431. 
r.  O.  &  M.  R.  R.  Co.  14  Ind. 

169,  §  1132. 
V.  Pond,  13  Pet.  65,  §  94. 


Angle  V.  N.  W.  etc.  Ins.  Co.  92  U, 

S.  341,  §  94. 
Anketel  v.  Converse,  17  Ohio  St. 

11,  §  256. 
Anon.  1  Nott  &  McC.  604,  §  1257. 
Anonymous,  1  Johns.  143,  §  1178. 
Apperson  v.  Bynum,  5  Cold.  341, 
§  982. 
V.   Union  Bank,  4  Cold.  445, 
§  987. 
Arbouin  v.  Anderson,  1  Ad.  &  EU. 

498.  §  80. 
Argenti  v.  San  Francisco,  16  Cal. 

255,  §  1123. 
Armijo  v.  New  Mexico,  etc.  Co.  5 

West  Coast  Rep.  482,  §  97. 
Arnold  v.  Dinsmore,  3  Cold.  235, 
§  1091. 
V.  Dresser,  8  AUen,  435,  §  957. 
V.  Nye,  23  Mich.  286,  §  1235. 
Ashley  v.   BaiUee,  2  Ves.  Sr.  368, 
§688. 
V.  Cunningham.  16  Ark.  168, 
§  359. 
Ashley's  Adm'x  v.  Martin,  50  Ala. 

537,"^  §1411. 
Ashmore  v.  Steam  Tow  &  Trans. 

Co.  28  N.  J.  L.  180,  §  558. 
Ashton  V.  Bayai-d,  71  Pa.  St.  139, 

§§  386,  421. 
Assignees  v.  Bright,   20  Mo.   298, 

§431. 
Astor    V.    Wells,    4    Wheat.     466. 

§§  192,  193,  672. 
Atcheson,  etc.    R.    Co.   v.  Black- 
shire,  10  Kan.  477,  §  1408. 
Atkinson,  In  re,  2  De  G.  M.  &  G. 

140,  §  433. 
Atkinson  v.  Runnels,  60  Me.  440, 
§  431. 
V.  Taylor,  2  Wilson,  K.  B.  117, 
§'1159. 
Atlantic  Tel.  Co.  v.  New  Orleans 
&  C.  R.  Co.    2  Cent.  L.  J.  88, 
§  1308. 
Atterbury  v.  Wallis,  8  De  G.  M.  & 

G.  454,  §§  47,  56,  672,  689. 
Attorney-General  v.  Flint,  4  Hare, 
"147,  §  46. 
V.  Foote,  11  Wis.  14,  §  1404. 
V.  Jones,  2  Jur.  369,  §  30. 
V.  Pargeter,  6  Beav.  150,  §  660. 
Atwater  v.  Schenck,  9  Wis.   160, 

§  1404. 
Atwell  V.  MiUer,  6  Md.  10,  §  1287. 
At  wood  V.  Fricot,  17  Cal.  37,  §§  1234, 
1251. 
V.   Hazleton,  3  Bailey  (S.  C), 
457,  §  738. 


TABLE    OF    CASES    CITED. 


xvu 


Atwood  V.  Munning,  7  B.  &  C.  278, 
§  664.. 
V.  The  Reliance  Co.  9  Watts, 

87,  §  541. 

Aubuchon  v.  Bender,  44  Mo.  560, 

§226. 
Aucher  v.  Bank  of  England,  Doug. 

637,  §  438. 
Auditor  v.  Hay  croft,  14  Bush,  284, 

§  1404. 
Auger  Steel,  etc.  Co.  v.  Whittier, 

117  Mass.  451,  §  1257. 
Avdt   V.    Gassaway,   18    Cal.   205, 

§874. 
Avent  V.   McCorkle,  45  Miss.  221, 

§230. 
AveriU   v.   Hedge,    12    Conn.  424, 

§383. 
Avery  V.  "VVoodbeck,  5  Lans.  (N.  Y.) 

498,  §  1212. 
Ayer  v.  Hutchins,  4  Mass.  870,  §  90. 
Ayers  v.  Duprey,  27  Tex.  593,  §  228. 
Aymar  tK  Sheldon,  12  Wend.  439, 

§822. 
Aymer  v.  Beers,  7  Cow.  705,  §  992. 
Ayrault    v.  Chamberlin,  26  Barb. 

88,  §  493. 

V.  Murphy,  54  N.  Y.  203,  §  341. 

B. 

B.  &  M.  L.  R'y  Co.  v.  Unity,  62  :Me. 

148,  §  378. 
Babcock  v.  Bridges,  29  Barb.  427, 
§149. 
V.  Bryant,  12  Pick.  133,  §§  389, 

401,  413.  425. 
V.  Lisk,  57  111.  327,  §  310. 
Bachelor  v.  Bachelor,  1  Mass.  256, 

§  1102. 
Backhouse  v.  Harrison,  5  Barn.  & 

Aid.  1098,  §§  80,  82. 
Backus  V.  Shipherd,  11  Wend.  629, 

§936. 
Bacon  v.  Bacon,  Tothill,  133,  §  807. 
V.  Gardner,  23  Miss.  60,  g  348. 
Bagge,   Ex   parte,  13    Beav.    162, 

§  676. 
Bailey  v.  Benslev,  87  111.  556,  §  480o. 
V.  Clark,  6  Pick.  372,  §  525. 
V.  Kalamazoo,  etc.  Co.  40  Mich. 

251,  §  1417. 
V.  McGinness,    57     Mo.      862, 

§§  343,  .848. 
V.  Myrick,  50  Me.  171,  §§  191, 

1065. 
V.  Richardson,   15  Eng.   L.   & 

Eq.  218,  §  278. 
V.  White,  13  Tex,  114,  §  273. 


BaUey  v.  Wright,  24  Ark.  78,  §§  1243, 

1821. 
Bainbridge  v.  Moss,  2  Jur.  N.  S.  58, 

§30. 
Baker  v.  Barney,  8  Johns.  72.  §  671. 
V.  Bliss,  39  N.  Y.  70,  §§  10,  65a, 

279. 
V.  Brinson,  9  Rich.  201,  §  558. 
V.  Griffin,  50  Miss.  158,  §  205. 
V.  Hall,  15  la.  277,  §  72. 
V.  Martin,  8  Barb.  634,  §  480m. 
V.  Mather,  25  iHch.  51,  §  310. 
V.  Mygatt,  14  la.  131,  §  1414, 
V.  Rand,  13  Barb.  152,  §  402. 
V.  Robinson,  63  N.  C.  191,  §  87. 
V.  Wales,  14  Abb.   Pr.  831 ;  45 

How.  Pr.  137,  §  1858. 
V.  Woodward,  5  W,  Coast  Rep. 
186,  g  231a. 
Baldney  v.  Ritchie,  1   Stark.  388, 

§  1272. 
Baldwin  v.  Cassella,  L.  R.  7  Ex.  325. 
§§  480fc,  695. 
V.    Jolmson,     Saxt.    Ch,     441, 

§  273. 
V.   Love,    2  J.   J.   Marsh.  489, 

§  369. 
V.  Richardson,  1  B.  &  C.  245, 

§990. 
V.  Smith,  82  111.  162,  §  iSOh. 
Ball  V.   Greaud,  14  La.  An.   305, 

§938. 
Ballard  v.  Burgett,  40  N.  Y.  314, 

§73. 
Balling  v.  Carter,  9  Ala.  921,  §  371. 
^alhtt  V.  Musgrave,  3  Can-.  &  Kir. 

31,  §  1138. 
Baltunore  v.  Bouldm,  28  Mi  828, 
§  1127. 
V.  State,  15  Md.  876,  §  1417. 
Baltimore,  etc.  R.  Co.  r.  Sherman, 
30  Gratt.  602,  §  1411. 
V.  Skeels,  3  W.  Va.  556,  §  553. 
Banco  de  Lima  v.  Anglo-Peruvian 
Bank,  L.  R.  8  Ch.  D.  160,  §  674. 
Bancroft  v.  Cousen,  18  Allen,  50, 
§  208. 
V.   Hall,   1  Holt,  476,  §§  828, 
889. 
Bander  v.  Covill,  4  Cow.  60,  g§  1177, 

1178. 
Bank  v.  Amnion,  27  Pa.  St.  172, 

V.  Dill,  5  Hill,  408,  §  954. 
V.  Fordyce,  9  Pa.  St.  275,  §  431. 
r.  Grimshaw,  15  La.  321,  §  711. 
V.  King,  14  N.  J.  L.  45,  §  821. 
V.  Wapples,  4  Har.  (Del.)  429, 
§939, 


XV  111 


TABLE   OF   CASES   CITED. 


Bank  of  Alexandria  i\   Swann,  9 

Pet.  33,  §g  805,  807,  823. 
Bank  of    America   v.   McNeil,   10 

Bush,  54,  5^,^  675,  6836. 
Bank  of  Aiij;usta  v.   Earl,  13  Pet. 

588,  S§  1302,  1306. 
Bank  of  Br<joklvn  v.    McChesney, 

20  N.  Y.  240,  ^^  491,  508. 
Bank  of  Cape  Fear  v.  Seawell,  2 

Hawks  (N.  C),  560,  §  714. 
Bank    of    Chenango  v.    Hyde,    4 
Cow.  567,  f  94&. 
V.  Root,  4  Cow.  126,  §  759. 
Bank  of  Columbia  v.  Fitzhugh,  1 
Har.  &  G.  239,  §  480o. 
V.  Lawi-ence,  1  Pet.  578,  §§  877, 
883. 
Bank  of  Commonwealth  v.  Mud- 
gett,  45  Barb.  663;  S.  C.  44  N.  Y. 
514,  §  509. 
Bank    of  Geneva    v.    Howlett,    4 

Wend.  323,  §  883. 
Bank  of  Greensboro  v.   Clapp,  76 

N.  C.  482,  §  113. 
Bank  of    Ireland  v.   Beresford,  6 

Dow.  237,  §  94a. 
Bank  of  Kentucky  v.  Adams  Ex. 

Co.  93  U.  S.  174,  §  554. 
Bank  of  Louisville  v.  Curren,  36 

la.  555,  §  29. 
Bank  of  Manchester  v.  Slason, .  13 

Vt.  334,  g  901. 
Bank  of  New  ]\Iilford  v.  Town  of 
New     Milford,      36    Conn.     93, 
§§  672,  675,  683. 
Bank  of  Niagara  v.,  McCracken,  18 

Johns.  493,  §  431. 
Bank  of  Orleans  v.  Flagg,  3  Barb. 

Ch.  316,  §55  65a,  273. 
Bank    of  Pittsbm-gh    v.    Neal,   22 
How.  96,  §  80. 
V.  Wlaitehead,   10  Watts,  397, 
gg  683a,  6836. 
Bank  of  Seaford  v.  Connoway,  4 

Houst.  206.  §  999. 
Bank  of  South  Carolina  v.  Meyers, 

1  Bailey,  412,  §  943. 
Bank    of    State    of    Missouri    v. 

Vaughn.  36  Mo.  90,  §§  697,  714. 
Bank  of  State  v.  S.  C.  Manf.  Co. 

3  Sti-obh.  190,  §  101. 
Bank  of  St.  Marys  v.  Mumford,  6 

Ga.  44,  §  6836. 
Bank  of  United  States  v.  Bierne,  1 
Gratt.  234,  §  757. 
V.  Corcoran,  2  Pet.   121,  §  843. 
V.  Davis,  2  Hill,  451,  §§  33,  672, 

681,  682,  683a,  690. 
V.  Goddard,  5  Mason,  366,  §  709. 


Bank  of  United  States  r.  Hatch,  1 
McLean,   90;    6    Pet.   250, 
§  857. 
V.   Leathers,    10    B.   Mon.   64, 
§957. 
Bank  of  Utica  v.  Bender,  21  Wend. 
643,  §  921. 
V.    Davidson,    5    Wend.    587, 

§922. 
V.  Mersereau,  3  Barb.  Ch.  528, 

§216. 
V.  Phillips,  3  Wend.  408,  §  922. 
V.  Smith,  18  Johns.  230,  §§  715, 
929. 
Bank  of  Virginia  v.  Craig,  6  Leigh, 

399,  §  6836. 
Bank  of  Washington  v.  Triplett,  1 

Pet.  25,  §  480o. 
Bank  of  West  Tennessee  v.  Davis, 

5  Heisk.  436,  §  865. 
Banks  v.  Banks,  31  lU.  162,  §  1342. 
V.  Burnham,  61  Mo.  76,  §  1414. 
Barbaries  v.  Gregory,  64  Cal.  230, 

§  1193. 
Barbai-oux  v.  Waters,  3  Met.  (Ky.) 

304,  §  997. 
Barbour  Co.  v.  Horn,  48  Ala.  649, 
§480gr. 
V.  Nichols,  3  R.  I.  187,  §  208. 
Barclay,    Ex  parte,    7   Ves.    597, 

§702. 
Barclay  v.  Weaver,  19  Pa.  St.  396, 

§939. 
Bardsley   v.    Hines,    33    la.     157, 

§§  1032,  1053. 
Bargate  v.  Shorti-idge,  5  H.  L.  Cas. 

297,  §  676. 
Barker  v.  Foy,  43  Miss.  260,  §  10. 
V.  Parker,  6  Pick.  80,  §  939. 
V.  Scudder,  56  Mo.  272,  §  420. 
Barlow  v.    Meyers,  64  N.   Y.   41, 
§431. 
V.    Wainwright,    23    Vt.    88, 
§§  578,  586. 
Barnard  v.  Campau,  29  Mich.  162, 
§149. 
V.  Wheeler,  24  Me,  412,  §  665. 
Barnes  v.    McCUnton,   3    Pa.    67, 
§§  7,  30,  31,  250,  673a,  685. 
V.   Reynolds,   4    How.    (Miss.) 

114,  §  767. 
V.  Ti-enton  Gas  Light  Co.  27  N. 
J.  Eq.  33,  §§  6836,  689. 
Barnet  v.  Bamet,   15  S.  &  R.  72, 

§  127. 
Bainey  v.  Cunier,  1  D.  Chap.  315. 
§59. 
V.  Douglass,  19  Vt.  98,  §  436. 
V.  Grover,  28  Vt.  391,  §  431. 


TABLE    OF    CASES    CITED. 


XIX 


Barney  t\  Little,  15  la.  527,  §  166. 

v/McCarty,  15  la.  510,  §  167. 
Barnhart  v.  Greenshields,  9  Moo. 
P.  C.  18 ;  28  Eng.  L.   &  Eq.   77, 
g§  7,  281,  284,  294. 
Barradaile  v.  Lowe,  4  Taunt.  93, 

§  959. 
Barret  v.  Evans,  28  Mo.  331,  §§  876, 

915. 
Barrett    v.     Chai'leston    Bank,    2 
McMullen,  191,  g  943. 
V.  Pritchard.  2  Pick.  512,  §§  72, 

75. 
V.  Smith,  4  W.  Va.  709,  §  1194. 
Barr  v.  Mitcliell,  7  Oreg.  346,  {i  87. 
BaiTon  V.  Eidredge,  100  Mass.  455, 
§  566. 
V.  Porter,  44  Vt.  587,  §  436. 
Barrows  v.  Bauglunan,  9  Mich.  213, 

Barr's  Trusts,  l7i  re,  4  K.  &  J.  219, 

§433. 
Bany  v.  Croskey,   2  J.  &  H.  21, 
§§  7,  35. 
V.  Morse,  3  K  H.  132,  g  939. 
Bartlett  v.  Glasscock.  4  Mo.  62,  §  30. 
V.  Hawlev,  120  Mass.  92,  §  794. 
V.  Isbell,  31  Conn.  296.  g  716. 
t\  Pearson,  29  Me.  9.  ^^  436,  443. 
V.  Robinson.  39  N.  Y.  187,  §  928. 
Barton  v.  Baker,    1   S.  &  R.    334, 
gg  I7QO   943 

V.  Kane,  17  Wis.  37,  §  1287. 
Bashford  v.  Shaw,  4  Ohio  St.  263, 

§  420. 
Baskeville  v.  Harris,  41  Miss.  535, 

§957. 
Basset  v.  City  of  St.  Joseph.  53  Mo. 

290 ;  14  Am.  Ren.  446,  §  4805r. 
Bassettr.  Salisbury  Co.  28  N.  H. 

438.  §  1280. 
Batchelor  v.  Priest,   12  Pick.  399, 

§§  697,  706,  707. 
Bateman  v.  Joseph,  2  Camp.  461, 

§990. 
Bates  V.   Norcross,    14    Pick.    224. 

§§  205,  207,  223. 
Bath  V.   Montague's    Case,    3  Ch. 

Cas.  110,  §  15. 
Battle  V.  Eddy,  31  Tex.  368,  §  1152. 
Battv  V.  McCundie,  3  Car.  &  P.  202, 

§  525. 
Batuit  V.  Hartley,  L.  R.  7  Q.  B.  594, 

§471. 
Baxter  v.  Clark,  4  Ired.  127,  §  525. 
Bay  u.  Coddington,  5  Johns.  Ch.  54; 

S.  C.  20  Johns.  637,  §  6G6. 
Bayer  v.   Cockerill,    3    Kan.    283, 

§369. 


Bayley  x\  Bailey,  5  Gray,  505,  §  06. 
Bayliffe  v.  Butter  worth,    1  Exch. 

425,  §  480o. 
Bayly  v.   Chubb,    10    Gratt.    284, 

§  1404. 
Baynard  ?'.  Harrity,   1  Houst.  200, 
§  480Z. 
V.  Norris,  5  Gill,  468,  §§  65a, 
273.  ♦ 

Bay  State  Bank  v.  Kiley,  14  Grav, 

492,  §  609. 
Bazemore  v.    Davis,    55    Ga.    504, 

§§  207,  310. 
Beach  v.   Bay  State,   etc.    Co.    SO 
Barb.  433,  §  1405. 
V.   Workman,   20  N.    H.   370, 
§  1417. 
Beadles    v.    Miller,    9    Bush,   405, 

§24. 
Beal  V.  Gordon,  55  Me.   482,  §  277. 
V.  Warren,  2  Gray,  447,  §  226. 
Beals  V.  Allen,  18  Johns.  363,  §652. 
V.  Peck,   13  Barb.  245,  §§  765, 
768. 
Bean  v.  Briggs,  4  la.  464,  §  1405. 
V.  Green,  12  Me.  422.  §  547. 
V.  Simpson,  16  Me.  49,  §  440. 
Beard  v.  Beard,  21  Ind.  321,  §§  1083, 
1142. 
V.  Kirk,  11  N.  H.  397.  §  671. 
Beardslee  v.   Horton,  3  ]\Iich.    560, 

§  94a. 
Bear  River  &  Auburn,  etc.  Co.  x\ 

Boles,  24Cal.  354,  §1198. 
Beasley  v.  Downey,   10  Ixed.    284, 

§  1241. 
Beatie  v.  Butler,  21  Mo.  313,  §§  275, 

282,  284. 
Beavan  v.  Earl  of  Oxford,  6  De  G. 

M.  &  G.  493,  §  240. 
Bebee  v.  Brooks,  12  Cal.  308,  §  738. 
V.  Moore,  3  McLean,  387,  §  1388. 
Beck  V.  De  Baptists,  4  Leigh,  349, 
§101. 
V.  Evans,  16  East.  244,  §  560. 
Becket  v.  Cardlev,  1  Bro.  Ch.  353, 

§§  8,  13. 
Beckman  v.  Shouse,  5  Rawle,  179, 

§541. 
Beckwith  v.   Smith,   23    Me.    125, 
§§  805,  937. 
V.   Union  Bank,  9  N.  Y.  211, 
§436. 
Bedford  v.  McElherron,  3  S.  &  R. 

49,  §§  581,  588. 
Beebe  v.   Dudley,   26  N.   H.    249, 

§§  390,  426. 
Beekman  v.  Frost,  18  Johns.  544, 
§§  149,  158. 


XX 


TABLE    OF   CASES    CITED. 


Beekman  v.  Hale,  17  Johns.  134, 

4^8  391.  393. 
Beers  v.  Hawlev,  3  Conn.  467,  §  113. 
Besrley  v.  Chose,  4  Daly  (N.  Y.), 

157,  §  1212. 
Belger  v.  Dinsmore,  51  N.  Y.  166, 

S  554. 
Bell  V.  Burnett,  2  J.  J.  Marsh.  516, 
-♦      §  1417. 
V.  Fleming,   12  N.  J.   Eq.   13, 

§  182. 
V.   Hagerstown  Bank,  7  Gill, 

21G,  ^  873. 
V.  Hall.  2  Dev.  288,  §  983. 
V.  Kellor,  18  B.  Mon.  381,  §  407. 
V.  ]\foss,  5  Whart.  189,  gtj  457, 

463,  480. 
V.  State  Bank,  7  Blackf.  456, 

8  876. 
V.    Twilight.    22    N.    H.    500, 
^§  290,  297,  316.  322. 
Bellamy  v.  Sabine,  1  De  G.  &  J.  566, 

§^  338,  356,  360. 
Bellas  r.  Lloyd,  2  Watts,  401,  §§  308, 
318 
V.  McCarty,  10  Watts,  13,  §§  30, 
113. 
Bellgerry  r.  Branch,  19  Gratt.  393, 

§  983. 
Belmont  Branch  Bank  v.  Hodge, 
35  N.  Y.  65,  §  80. 
V.  Morrill,  69  Me.  314,  §  1404. 
Bemis  v.  McKenzie,  13  Fla.  557, 

§738. 
Ben  Adams,  The.  2  Ben.  445,  §  577o. 
Bend  r.  Weitze.  12  Wis.  611,  §  94a. 
Bendy    v.    Boyce,    37     Tex.    443, 

§^  1152,  1365. 
Benham  v.  Keau,  2  De  G.  F.  &  J. 

318,  §  231. 
Bennett  v.   Buchan,  61  N.  Y.  222, 
§  65a. 
V.   Hetherington,   41    la.    142, 

g  1073. 
V.  Jenkins,  13  Johns.  50,  §480e. 
V.  North  British,  etc.  Ins.  Co. 

8  Dalv.  471,  §  1416. 
V.  Waller;;  23  HI.  97,  §  143a. 
V.  Williams,  5  Ohio,  461,  §  348. 
Bensley  v.  Mountain  Lake  Water 

Co.  13  Cal.  306.  g  374. 
Bercaw  v.  Cockerill,  20  Ohio  St. 

163,  §  225. 
Berdoe  v.  Dawson,  34  Beav.  603, 

§29. 
Berkley    v.    Lamb,    8    Neb.    399, 

§96. 
Berkshire  Bank  v.  Jones,  6  Mass. 
524,  §  936. 


Berkshire,  etc.   Co.  v.   Proctor,   7 

Cush.  417,  §  480o. 
Berresford  i'.  Geddes,  Law  Rei).  3 

C.  P.  285, 1  1170. 
Berridge  v.  Fitzgerald,  4  Q.  B.  639, 

§867. 

Berry  v.  Cooper,  28  Ga.  543.  §  .158. 

V.  Robinson,  9  Johns.  121.  §  738. 

V.    Southern   Bank  of   Ky.,    2 

Dev.  379,  §  983. 

Berson  r.  Neman,  63  Cal.  550,  §  97. 

Bertram  v.   Cook,    33    Mich.   518, 

§316. 
Bessozzi  v.  Harris,  1   F.  &  F.  92, 

§  480t. 
Best  V.  Hoppie,  3  Colo.  139,  §  87. 
V.    Osborn,   1  Carr.  &   P.   632, 
§  1274. 
Betser  r.  Ranken.  77  Bl.  289,  §  119. 
Bevan  v.  Lord  Oxford,  6  De  G.  M. 

&  G.  492,  §  434. 
Bevens    v.    Baxter.    23  Ark.    387, 

§  1404. 
Beverly  v.  Ellis,  1  Rand.  102,  §  101. 
Beymer  v.  Bonsall,  79  Pa.  St.  298, 

§671. 
Bickerdike  v.  Bollman,  1  T.  R.  405, 

§  1001. 
Bickford    v.   Gibbs,   8    Cush.   154, 

§427. 
Bierce  v.  Red  Bluff  Hotel  Co.   31 

Cal.  160,  §§  674.  077. 
Bilbie  v.  J^umlev.  2  East,  469,  §  975. 
Biles  V.  Stanton,  69  111.  51,  §  1161. 
Billingsley  v.  Dean,    11  Ind.   331, 

§  1405. 
Billington  v.  Welsh,   5  Binn.  129, 

§  293. 
Bingamore  v.  Hyatt,  1  Sm.  &  M. 

Ch.  437,  §  8. 
Bingham  v.  Rogers,  6  W.  &  S.  495, 

§§  541,  558. 
Birbeck  v.  Tucker,  2  Hall  (N.  Y. 

City),  .121,  §  1273. 
Bircli  V.  Ellames.  2  Anst.  427,  §  56. 
Bird  V.  Brown,  4  Exch.  786;  14  Jur. 
132,  §§  401,  464.  480. 
V.  Dennis,  7  Cal.  297,  §  97. 
V.   Le  Blanc,   6  La.  An.   470, 

§  935. 
V.  Wilkenson,    4    Leigh,    266, 
§  101. 
BirdsaU    t".     Heacock    (Sup.     Ct. 
Com'rs  O.),  18  Am.  L.  Rec. 
751,  §  391. 
V.  Russell,  20  N.  Y.  220.  §  46. 
Birkett  v.  AVillau,  2  B.  &  Aid.  356. 

§  558. 
Buks  V.  Trippet,  1  Saund.  83,  §  393. 


TABLE    OF   CASES   CITED. 


XXI 


Bimie  v.  ]\Iain,  29  Ark.  591,  §  203. 
Bisco  V.  Earl  of   Banbury,  1   Ch, 

Cas.  287,  §  307. 
Bishop  V.  A  Copyholder,  Freem.  Ch. 
137,  g  18. 
V.  Dexter.  2  Conn.  419,  §  738. 
V.  Garcia,  14  Abb.  Pi-.  69,  §431. 
V.  Ilalcomb,     10     Conn.     444, 

8  436. 
V.  Jones,  28  Tex.  294,  §  1411. 
V.  O'Connell.  56  Mo.  159,  §  67. 
V.  Schneider,  46  Mo.  472,  §§  133, 

165. 
V.  State,  30  Ala.  34,  §  1412. 
Bishop  of  Winchester  v.'Paine,  11 
Ves.   Ch.   194;    1   Ch.   Cas.    150, 
§§  344,  346. 
Bissell  V.  Irwin,  13  La.  143,  §  480c. 
Bixby  i\  Smith,  49  How.  Pr.  50 ;  5 
Thomp.  &  C.  281,  §  1038. 
V.  Warden,   40   How.  Pr.   239, 
g  1213. 
Blackman  v.  Leonard,  15  La.  An. 

59,  §  794. 
Blackhani  v.  Doren,  2  Camp.  503, 

§§  1004,  1015. 
Blair   v.    Compton,    33   Mich.  414, 
§  1097. 
V.  W^ard,    10   N.    J.    Eq.    119, 
§203. 
BlaisdeU   v.   Stevens,    16  Vt.   179, 

§,§  10,  11,  21. 
Blake  v.  Bigelow,  5  Ga.  437,  §§  342a, 
353. 
V.  Graham,   6    Ohio    St.    580, 
§?;  205,  206,  223. 
Blanchard  v.  Page,  8  Gray,   281, 
§472. 
V.   Ware.   43  la.   530,    §§  339, 
342a. 
Blankensliip  v.  Douglass,  26  Tex. 
225,  §  288. 
V.  Rogers,  10  Ind.  838,  §  1006. 
Blatchley  v.  Osborn,  33  Conn.  226, 

§g  3,  17,  30,  53. 
Bleeker  v.  Hyde,  8  McLean,  279, 

§  394. 
Blenden  v.  Charles,   7  Bing.    246, 

§  480??i. 
Bliven  v.  New  Eng.  Screw  Co.  23 

How.  420,  §  48071. 
Blood  V.  Blood,  23  Pick.  80,  §§  112, 

125. 
Bloom  V.   Noggle,  4  Ohio  St.  45, 

§§  225,  231a. 
Bloomer  v.  Henderson,  8  IVIich.  395, 

§299. 
Blossom  V.   Griffin,  13  N.  Y.  569, 
§557. 


Blum  r.  Bidwell,  20  La.  An.  43, 

§957. 
Blumenburg  v.  Myers,  32  Cal.  93, 

§  585. 
Blumenthal  v.  Brainard,  38  Vt.  402, 

§§  508,  570,  674,  688. 
Boardman  v.  Gore,  15  Mass.  331, 

§525. 
Board  of  Com'rs  v.  Babcock,  5  Or. 
472,  §  165. 
V.  Spitler,  13  Ind.  235,  §  1410. 
Boatright   v.    Porter,    32  Ga.    130, 

g  1269. 
Bobb  V.   Woodward,   42  Mo.   482, 

§§  1031,  1056. 
Bodenham  v.  Bennett,  4  Price,  31, 

§g  558,  560. 
Boehm  v.  Combe,  2  M.  &  S.  172, 

§532. 
Bogan  V.  Wilhams,  8  Younge  &  J. 

150,  §  13. 
Bogy  V.  Keil,  1  Mo.  743,  §  1017. 
Boggs  V.   Anderson,   50    Me.    161, 
§277. 
V.  Black,  1  Binn.  333,  §  649. 
v.  Varner,  6  Watts  &   S.  469, 
§§  29.  46,  119,  263,  278,  288, 
294,  315,  316,  322. 
Bogne    V.    Williams,    48    111.   371, 

§g  273,  279,  288. 
Bolilen  v.  Cleveland,  5  Mason,  174, 

§  436. 
Bohn  V.  Devlin,  28  Mo.  319,  §  1229. 
Bohr  V.  Steamboat  Baton  Rouge,  7 

Sm.  &  M.  715,  §  1242. 
Bolard  v.  Mason,  66  Pa.  St.  138, 

§  1362. 
BoUes  V.   Chauncey,  8  Conn.  389, 

§  208. 
Bolhn  V.  Connelly,  73  Pa.  St.  336, 

§343. 
Bolton  V.  Lane.  &  York  R'y  Co.  L. 

R.  1  C.  P.  431 ;  35  L.  J.  C.  P.  137, 

§  466. 

Bond    V.   Farnham,   5    Mass.    170, 

§§  732,  943. 

V.  WHson,  8  Kan.  228,  §  1379. 

V.  Whitfield,  28  Ga.  537,  §  1335. 

Bondurant  v.  Everett,  1  Met.  (Ky.) 

658,  §  876. 
Bonner  v.  Ware,  10  Ohio,  465,  §  311. 
Boon  V.  Pierpont,  28  N.  J.  Eq.  7, 

§185. 
Boorman  v.  Ex.  Co.  21  Wis.  153, 

§553. 
Boot    V.   Franklin,   3    Johns.   207, 

§  1396. 
Booth  V.    Barnum,    9  Conn.  286, 

§11. 


xxu 


TACLK   OF   CASKS   CITED. 


Borden    r.   Clark,    26    Mich.    410, 
§  94a. 
V.  State,  11  Ark.  519,  8  1160. 
Borroscale  v.  Tuttle,  5  Allen,  377, 

§339. 
Bossard  v.  White,  9  Rich.  Eq.  483, 

§;i  119,  121. 
Boston  V.  State,  5  Tex.  App.  383, 

§  1410. 
Bostwick  V.   Powers,   12    la.   456, 
§§  97,  168. 
V.  Railroad,  45  N.  Y.  712,  8  557. 
Botsford  V.  O'Connor,   57  111.  72, 

§  1367. 
Boulden  v.  Lanahan,  29  Md.  200, 

§239. 
Boulleraent  v.  State,   28  Ala.   83, 

§  1417. 
Boursot  V.  Savage,  L.  R.  2  Eq.  184, 

§672. 
Bovey  v.  Smith,  1  Ver.  60,  §  63. 
Bowles  V.  Round,  5  Ves.  508,  §  600. 
Bowling  V.   Arthur,   34    Miss.  41, 

V.  Harrison,  6  How.  248,  §§  844, 
847,  875. 
Bowman  v.  Lee,  48  Mo.  335,  §  231. 
V.   Van  Kuren,   29    Wis.  218, 

§94a. 
V.  Wettig,  39  HI.  416,  §  1260. 
Boyce  v.  Shiver,  3  S.  C.  515,  §  101. 
Boyd  V.  Beck,  29  Ala.  703,  ^  231. 
V.  City  Savings  Bank,  15  Gratt. 

501,  §§  764,  844,  926. 
V.  Cleveland,  4  Pick.  524,  S  941. 
V.  Graham,   5  Mo.    App.   403, 

§  480?i. 
V.  McCann,  10  Md.  118,  §  504. 
V.  Orton,  16  Wis.  495,  §  764. 
V.  Schlesmger,   59  N.  Y.   301. 

§123. 
V.   W^hitfield,     19     Ark.    447, 
§§  480c,  480Z. 
Boynton  v.  Bodwell,  113  Mass.  531, 
§§  631,  647. 
V.  Clinton  &  Essex  Ins.  Co.  16 
Barb.  254,  §  447. 
Bozon  V.  Williams,  3  Younge  &  J. 

150,  §  47. 
Brable  v.  Hollywell,  1  Croke,  250, 

§  1387. 
Bracken  v.  Miller,  4  W.  «fe  S,  102, 

§^  672,  674,  688. 
Brackett   V.    Rich,   23  Minn.  485, 

§418. 
Bradford  V.    Corey,    5  Barb.  461, 

§  1025. 
Bradley  v.  Covel,  4  Cow,  349,  §  591. 
V.  Davis,  2(6  Me.  45,  §§  829, 836. 


Bradley    v.    Hardin,    73  Ala.   70. 
§  1405. 
V.  McDariicl,  3  Jones,  128,  §  ;343. 
V.  Riches,  L.  R.  9  Ch,  D.  189, 

§§  56,  690. 
V.  Snvder,  14  lU.  263,  §§  273, 

278,  288. 
V.  Wheeler,  44  N.  Y.  500,  g480;i. 
Bradshawr,  May  field,  18  Tex.  21, 

§  1411. 
Brady  v.  Page,  59  Cal.  52,  §  1410. 
Bragg  V.  Bangor,  51  Me.  532,  §4805r. 
V.  Paulk,  42  Me.  502,  §  316. 
V.  Rush  Co.  34  Ind.  400,  §  1409. 
Brahn  v.  Jersey  City  Forge  Co,  38 

N.  J.  L.  74,  §^  620,  698,  701. 
Brailsford  v.  Williams,  15  Md,  150, 

§710. 
Braley  v.  Buchanan,  21  Kan.  555, 
§  735. 
V.  Seaman,  30  Cal.  610,  §  1036, 
Braman  v.  Wilkinson,  3  Barb.  151, 

§  373. 
Branch  Bank  v.  Gafney,  9  Ala.  153, 
§7:38. 
V.  Steele,  10  Ala.  915,  §§  683, 
6836. 
Brandao  v.  Barnett,  12  C.  &  F,  787, 

§  14U4. 
Brandt  v.   Klein,    17  Johns,    335, 

§  1272. 
Brashear  v.  West,  7  Pet.  608,  §  431. 
Bratton's  Appeal,  8Pa.  St.  164,  §96. 
Bray  v.  Gunn,  53  Ga.  144,  §  668. 
V.   Hadwen,    5    M.    &    S,   68, 
§§  796,  824. 
Breed  v.  Conley,  14  la.  269,  §  167, 
V.    Hillliouse,    7     Conn.    523, 
§§  394,  418,  956,  969. 
Bretz  V.  Mayor,  etc.   of  N.   Y,  6 

Rob.  (N.  Y.)  325,  §  1404. 
Brewer  v.  Springfield,  97  Mass,  152, 

§  1079, 
Brice  v.  Brice,  5  Barb,  533,  §  65a. 
Bridge  v.  Beadon,  L.  R,  3  Eq,  664, 

§§  7,  35,  443. 
Bridgeport  Ins.  Co,  v.  Wilson,  34 

N.  Y.  275,  §  480Z. 
Bridges  v.  Arnold,  37  la.  221,  §  1383. 
Briffitt  V.  State,  58  Wis.  39;  46  Am. 

Rep.  621,  §  1416. 
Briggs  V.  Boyd,  37  Vt.  538,  §  94b. 
V.  Green,  33  Vt.  565,  §  1221. 
V.  Jones,  L.  R.  10  Eq.  92,  §  6.j(r 
V.  Palmer,  20  Barb.  392.  §  310. 
V.  Sneghan,  45  Ind.  14,  §§  ll.')'.i, 

1161. 
I'.  Taylor,  28  Vt.  180,  §§  11, 60a. 
Bright  V.  Young,  15  Ala.  112,  §  128U. 


TABLE   OF   CASES   CITED. 


XXlll 


Brighton  Market  Bank  v.  Philbrick, 

40  N.  H.  506,  §  990. 
Bright's  Trusts,  Re,  21  Beav.  430, 

§35. 
Brindley  v.  BaiT,  3  Han-.  (Del.)  419, 

g§  846,  873. 
Brinkman  v.  Jones.  44  Wis.  498, 

§§  10,  11,  244,  246. 
Brinton  v.  Seevers,  12  la.  389,  §  112. 
Brisban  v.  Boyrl,  4  Paige,  17,  §  383. 
Bristol  V.  Sprague,  8  Wend.  423, 

§519. 
Bristow  V.  Secqueville,  5  Exch.  275 ; 

19  L.  J.  Ex.  289,  §  1405. 
Britton's  Appeal,  45  Pa.  St.   172, 

§§  227,  231a,  238. 
Broadbent  v.  Barlow,  3  De  G.  V.  & 

G.  570,  §§  10,  56,  65a. 
Broad  Street  Hotel  v.  Weaver,  57 

Ala.  26,  §  1408. 
Brock  V.  Heade)!,  13  Ala.  370,  §  205. 
Bronson  v.  Coffin,   118  Mass.  156, 
§  662. 
V.    Kensey,    3    McLean,    180, 
§  1257. 
Brooke  v.  Pickwick,  5  Bing.  218, 

§544. 
Brooklyn  Trust  Co.  v.  Bulmer,  49 

N.  Y.  84,  §  1352. 
Brooks'  Appeal,  64  Pa.  St.  127,  §  96. 
Brooks  V.  Blanev,  62  Me.  456,  §  838. 

V.  Hey,  23  Hun,  372,  §  94&. 
Brotherton  v.   Hatt,  3  Vern.  574, 
§§  687,  690. 
V.  Livingston,  3  W.  &  S.  334, 
§183. 
Broughton  v.  Journeay,  51  Pa.  St. 

31,  §  1107. 
Brower  v.   Brooks,  11  Barb.   423, 

§  1192. 
Brown  v.   Andover,    1   Hon.    193, 
§44. 
Bankers',   etc.  Co.    30  Md. 
39,  §  674. 
V.  Brooks,  25  Pa.  St.  210,  §  421. 
V.  Budd,  2  Ind.  442,  §  119. 
V.  Clark,  28  Vt.  690,  §  1414. 
V.  Clement,  68  111.  192,  §  1251. 
V.  Dean,  3  Wend.  208,  §  187. 
V.  Eastern  R.  R.  Co.  11  Cush. 

97,  §  543. 
V.  Ford,  52  Me.  479,  §  1244. 
V.  Fui-guson,  4  Leigh,  37,  §  797. 
V.  Gaffney,  28  HI.  149,  §§  273, 

276. 
V.    Goodwin,    75    N.    Y.    409, 

§§  351.  354. 
V.  Grand  Trunk  R.  R.  Co.    54 
N.  H.  535,  §  555. 


Brown    v.   Leonard,   2    Cliit.    120, 
§§  483,  486,  524. 
V.   Lunt,  37  Me.  423,  §§  112, 

136. 
V.  Maflfey,  15  East,  216,  §§  1004, 

1010. 
V.  Patton,  3  Humph.   (Tenn.) 

135,  §  671. 
V.  Piper,  91  U.  S.  37,  §  1417. 
V.  Savage,  4  Drew,  635,  §  437. 
V.  Simons,  44  N.  H.  475,  §  310. 
V.  Simpson,  4  Kan.  76,  §§  127, 

128. 
V.  State,  8  Heisk.  (Tenn.)  871, 

§§  1195,  1203. 
V.  Taylor,  13  Vt.  637,  §  480c. 
V.  Turner,  15  Ala.  (N.  S.)  832, 

§§  751,  754. 
V.  Volkenniug,    64  N.   Y.   76, 

§§  279.  288,  290,  291. 
V.  WeUs,  44  Ga.  573,  §  3. 
Brownfield  v.-  Dyer,  7  Bush,  505, 

§§  1343,  1344. 
Browning  v.   Kin  near,    Gow.   81, 
§990. 
V.  Paige,  7  How.  Pr.  487,  §  1179. 
Brown's  Trust,  In  re,  L.  R.  5  Eq. 

88,  §  433. 
Bruce  v.  Cloutman,   45  N.   H.  37, 

§  1138. 
Bruen  v.  Bruen,  43  111.  408,  §  1201. 
Brundage  v.  Biggs,  25  Ohio  St.  652, 

§339. 
Brune  v.  Thompson,  2  Q.  B.  789 ;  2 

G.  &D.  110,  §1410. 
Brush  V.  Halloway,  2  J.  J.  Marsh. 
180,  §  65a. 
V.  Scribner,  11  Conn.  388,  §  80. 
V.  Ware,  15  Pet.   93;  S.   C.   1 
McLean,  533,  §  311. 
Brushaben  v.  Stigemann,  22  Mich. 

199,  §  1168. 
Bryant  v.  Booze,  55  Ga.  438,  §§  52, 
55,  65. 
V.  Merchants'   Bank    of    Ken- 
tucky, 8  Bush,  43,  §  936. 
V.  Moore,  26  Me.  84,  §  658. 
Brydolf  v.  W^olf,  32  la.  509,  §  1338. 
Brydon  v.  Campbell,    40  Md.    331, 

§§  140,  149. 

Bryne  v.  Roberts,  31  la.  319,  §  1041. 

Buchanan  v.  Curry,  19  Johns.  137, 

§  748. 

V.  Findlay,  9  B.  &  C.  738,  §  946. 

V.  Iiiternational   Bank,   78  111. 

500,  4<  208. 
V.  MarshaU,  32  Vt.  561,  §  936. 
Buck  V.  Paine,  50  Miss.  648,  §§  10, 
30,  65a,  279. 


XXIV 


TABLE    OF    CASES    CITED. 


Buckinsjham  v.  Hanna,  2  Ohio  St. 
'551,  §214. 
V.  Smith,  10  Ohio,  228,  g  44. 
Buckinghouse  v.    Gregg,    19    Ind. 

401,  gi5  1409,  1411. 
Buckley  r.  Fui-niss,  15  Wend.  137, 
§  464. 
V.  Garrett,  47  Pa.  St.  204,  §  448. 
V.  Lewis,  20  Wis.  490,  §  1180. 
Buckman  i\   Levi,   3  Camp.   414, 

i^i^  453,  454. 
Buckmaster  v.   Needham,   22  Vt. 

G17,  S  290. 
Buckner  v.  Jones,  1  Mo.  App.  538, 

§§  88,  90. 

Buel  V.  Warner,  33  Vt.  570,  §  1404. 

Buell  V.  State,  72  Ind.  523,  §  1413. 

Buffalo  Pipe  Line  Co.  v.  N.  Y.  etc. 

R.  Co.  10  Abb.  N.  C.  107,  j^  1410. 

Buffalo  Steam  Engine  Works  v.  Sun 

Mutual  Ins.  Co.   17  N.  Y.  401, 

^446. 

Buford  V.    Hickman,    1    Hempst. 

233,  §  1412. 
Building  Association  v.  Wilson,  41 

Md.  514,  §  101. 
Bull  V.  Bliss,  30  Vt.  127,  §  426. 
Bundy  v.   Hyde,   50    N.    H.    116, 

§  1232. 
Bunker  v.  Gilmore,  40  Me.  88,  §  434. 
Bunting  v.  Ricks,   2  Dev.   &  Bat. 

Ell.  130,  §g  30,  65. 
Burbank  v.  Dyer,  54  Ind.  239,  §  583. 
Burbridge  v.    Manners,   3    Camp. 

193,  §  782. 
Burch  V.  Carter,  44  Ala.  115,  §§  307, 

322. 

Burdett  v.  Abot.  5  Dow.  165,  g  1404. 

V.  Colman,  14  East,  163,  §  1404. 

V.  Lewis,  7  C.  B.  (N.  S.)  791, 

§  1337. 

Burdine  v.   Grand   Lodge  of  Ala. 

37  Ala.  478,  §  1417. 
Burgess  v.  Vreeland,  24  N.  J.  L. 

71,  §  805. 
Burgh  V.  Legge,  5  M.  &  W.  418, 

§  1397. 
Burk  V.   Barnard,   4    Johns.    309, 
§  1159. 
V.  Milteuberger,  19  WaU.  519, 
§  1404. 
Burkai-t  v.    Bucher,   2   Binn.  455, 

^312. 
Burke  v.  McKay,  2  How.  66,  §§  697, 

715. 
Burkhalter    v.    Ector,   25  Ga.   55, 

§225. 
Bulling  V.   Read,    11   Q.    B.    904, 
§480/i. 


Burmestcr  v.  Barron,  17  Ad.  &  Ell, 

828,  §  926. 
Burnel  v.  Wood.  2  Roll.  22,  §  1390. 
Bm-uett  V.  Hendei-son,  28  Tex.  588, 
§  1412. 
V.  Lynch,  5  B.  &  C.  28,  §  1278. 
Burnham  v.  Chandler,  15  Tex.  441, 
§120. 
V.    Gallentine,     11    Ind.    295, 

§§  420,  422. 
V.  Webster,  17  Me.  50,  §  936. 
Buron  v.   Deuman,   2  Exch.    167, 

§  069. 
Bun-el  V.  North,  2  Carr.  &  K.  680, 

§§  453,  455,  532. 
Bm-rough  v.  Moss,  10  B.  &  C.  558, 

§728. 
Bm-rows  v.  Hannegan,  1  McLean, 
309,  §  891. 
V.  Locke.  10  Ves.  470,  §S  7,  35. 
Burrus  v.   Boulliac,   2    Bush,    39, 

§  325. 
Burt  V.  Cassety,  12  Ala.  734,  §§  65a, 

273. 
Burton  V.  Shotwell,  6  Cent.  L.  J. 
31,  §§  299,  378. 
V.  Wolf,   4    Harr.   (Del.)    221, 
§  1097. 
Bm'well    t».    MandeviUe,    2    How. 
560,  §  496. 
V.  Springheld,  15  Ala.  273,  §528. 
Bm  well's  Ex'rs  v.  Fauber,  21  Gratt. 

446,  §  307. 
Busey  v.  Reese,  38  Md.  264,  §  96. 
Bush   V.  Bush,  2   Duv.  (Kv.)  269, 
§  1158. 
V.  Garner,  73  Ala.  162,  S  1405. 
V.  Golden,  17  Conn.  594,  §§  114, 

191,  281,  294, 
V.  Lathrop,  22  N.  Y.  535,  §  436. 
V.  Ware,  15  Pet.  93,  §  65a. 
Bushell  V.  Bushell,  1  Sch.  &  L.  90, 

§§  104,  107. 
Bussard  v.  Levermg,  6  Wheat.  102, 

§§  781,  844. 
Bussey    v.    Leavitt,    12    Me.    378, 

§§  1108,  1114. 
Butcher  v.  Brownsville,  2  Kan.  70, 
§  1405. 
V.  Yocum,  61  Pa.  St.  168,  §  28. 
Butler  V.  Duval,  4  Yerg.  265,  §§  709, 
735. 
V.  Heane,  2  Camp.  415,  §  540. 
V.  IMitchcll,  17  Wis.  52.  §  1198. 
V.  Robinson,  75  Mo.  192.  ^  1408. 
V.  Stevens,  26  Me.  484,  §§  7,  29, 
277. 
Buttrick  v.  Holden,   13  Met.   355, 
§§  10,  29,  35,  65a,  279. 


TABLE   OF   CASES   CITED. 


XXV 


Byers  v.  Engle,  16  Ark.  543,  §  96. 
Byles  V.  Tome,  39  Md.  461,  §  101. 
Byrne  v.  Roberts,  31  la.  319,  §  1041. 

c. 

Cabeen  v.  Breckem-idge,  48  lU.  91, 
S§  246.  273.  276,  288. 
V.   Campbell,   30  Pa.    St.   254, 
§g  464,  468. 
Cabot  Bank  v.  Eussell,  4  Gray,  167, 
§903. 
V.  Warner,  10  Allen,  522,  §§  786, 
830,  842. 
Cady  V.  Hough,  20  111.  43.  §  1286. 
Cahoon  V.  Morgan,  38  Vt.  234,  §438. 
Cahuzac  v.   Samini,   29  Ala.  288, 

§391. 
Calahan  v.   Babcock,   21  Ohio  St. 

281,  §  464. 
Calais  Steamboat  Co.  v.  Van  Pelt, 

2  Black,  372,  §§  651.  653. 
Calder  i\  Chapman,  52  Pa.  St.  359, 

§§  149,  206,  215. 
Calderwood  v.  Brooks,  28  Cal.  151, 

§  1202. 
Caldwell  v.  Head,  17  Mo.  561,  §§  219, 
222. 
V.  McVicar,  9  Ark.  418,  §  1253. 
Calisher  v.  Forbes,  L.  R.  7  Ch.  109, 

§433. 
Call  V.  Hastings,  3  Cal.  179,  §  97. 
Calvin  v.  Bowman,  16  la.  529,  §  168. 
Camb.  &  Amb.  Railw.  v.   Baldauf, 
16  Pa.   St.  67,  §§  545,  553, 
554,  558. 
V.    Belknap,     21    Wend.    354, 
§§  552,  553. 
Cambridge  Valley  Bank  v.  Delano, 

48  N.  Y.  326,  §  17. 
Camden  v.  Guild,  4  Cal.  250,  §  1405. 
Cameron  v.   Blackman,   39  Mich. 

108,  §  1417. 
Camp  V.  Bates,  11  Conn.  488,  §  1397. 
V.  Steamboat  Co.  43  Conn.  333, 
g  553_ 

Campbell  v.  Baker,  46  Pa.  St.  243, 
8  432. 
V.  Brackenridge,  8  Blackf.  471, 

§296. 

V.  Hastings,  29  Ai-k.  512,  §  657. 

V.  PettengiU,  7  Me.  126,  §  1004. 

V.  Roach,  45  Ala.  667,  §§  307, 

328. 

Canefox  v.  Crenshaw,  24  Mo.  199, 

§  480i. 
Caney  v.  Patton,  2  Aslim.  (Pa.)  140, 
§671. 


Caney    v.   Silverthorn,   9  Cal.    67, 

§§  1202,  1329. 
Cahfield  v.    Hard,    6    Conn.    180, 

§496. 
Cannon  i\  Franklin,  4  Root,  500, 

§155. 
Canton  v.  City  of  Portland,  4  Oreg. 

339,  §  10. 
Cardwell  v.  Allen,  33  Gratt.  157. 

§  736. 
Carey  r.  Butler,  lllnd.  391,  §  1159. 
tn  Cincinnati,  etc.  R.  Co.  5  la. 
357,  §  1405. 
Carland    v.    Cunningham,    37    Pa. 

St.  228,  §§  1257,  1258. 
Carlisle  v.  Tuttle,  3  Ala.  613,  §  1236. 
Cai-lton  V.  Patterson,  29  N.  H.  580, 

§  1247. 
Carmena  v.  Bank  of  La.  28  N.  H. 

302,  §  794. 
Carmichael  v.   Greer,  55  Ga.  116, 

§  530, 
Carolina  Nat'l  Bank  v.  Wallace,  13 

S.  C.  347,  §  768. 
Carpenter  v.  Dexter,  8  Wall.  513, 
§  1405. 
V.  Oaks,  10  Rich.  17,  §  87. 
V.  Remolds,  42  Miss.  807,  §  934. 
V.  Spooner,  2  Sandf .  717,  §  1358. 
V.  United  States,  6  Ct.  CI.  156 ; 
17  Wall.  489,  §  593. 
Carpentier  v.  Thurston,  30  Cal.  123, 

§  1329. 
Carr  r.    Callagau,   3    Littell,   365, 

§355. 
Carrington  v.  Brent,  1  McLean,  167 ; 
S.  C.  9  Pet.  86,  §  354. 
V.  Stimson,  1  Curtis  C.  Ct.  437, 
§  1246. 
Carson    v.    Dalton,    59  Tex.    500, 
§  1410. 
V.  Smith,  5  Minn.  78,  §  1406. 
Carter    v.    Boelim,    3  Buit.  1905, 
§  280n. 
V.  Burley,  9  N.  H.  558,  §§  795, 

805,  815. 
V.    Champion,    8    Conn.     548, 

§§  112,  138. 
V.  Carter,  2  K.  &  J.  617,  §  48. 
V.  Daizy,  42  Miss.  501,  §  1375. 
V.   Flower,    16  M.  &  W.  743, 

§  1017. 
V.  Mills,  30  Mo.  432,  §  357. 
V.  Pratt,  9  Md.  73.  §  1414. 
Cartmell's  Case,  9  Ch.   App.  691, 

§  676. 
Case  V.  Erwin,  18  Mich.  434,  §  307. 
V.  Hannahs.  2  Kan.  490,  §  1143. 
V.  Mobile,  30  Ala.  538,  §  1404. 


XXVI 


TABLE   OF   CASES   CITED. 


Cash  V.  Auditor,  7  Ind.  227,  §  1410. 
Cass    V.   BeUows,    31    N.    H.  501, 

§  1103. 
Cass  Co.  V.  Green,  G.,  Mo.  498,  §§88, 

93. 
Cassidav  v.  McKenzie,  4  W.  &  S. 

283,  §671. 
Caswell  V.  Wendell,  4  Mass.  523, 

§  480c. 
Cater  v.  McDaniel,  21  N.  H.  231, 

§  1222. 
Cates  V.  Winter,  3  T.  R.  306,  §§  1257, 

1290. 
Cathay  v.   Svdeuliam,  2  Bro.  Ch. 

391,  §  10. 
Catskill  Bank  v.   Stall,  15  Wend. 

364,  §  920. 
Cavagnaro  v.  Don,  63  Cal.  227,  §  21, 
Cavender    v.    GuUd,    4    Cal.    250, 

§  1405. 
Cavucra  Bank  v.  DiU,  5  Hill.  403, 

§  954. 
CajTiga  County  Bank  v.  Bennett, 
'      5HU1,23G,  §  702. 
V.  Hunt,  2  Hill,  635,  §  788. 
Center  v.  P.  &  M.  Bank,  22  Ala. 

743,  §§  10,  342a. 
Central  Bank  v.  Allen,  16  Me.  41, 
§  1281. 
V.  Davis,  19  Pick.  373,  §  955. 
Central  R'y  Co.   of  Venezuela  v. 
Kisch,  2  L.  R.  App.  Ca.  112,  §  7. 
Centi-al  Savings  Bank  v.  Shine,  48 

Mo.  456,  §  399. 
Chadwick  v.  Turner,  L.  R.  10  Ch. 
8 ;  1  Ch.  App.  Cas.  310,  §§  108, 
217,  231. 
Chaffee  v.  M.  C.  &  N.  W.  R.  Co.  64 

Mo.  193,  §g  87,  956. 
Chamberlain  v.   Bell,   7  Cal.  292, 
§97. 
V.  Donahue,  44  Vt.  57,  ^  604. 
V.  Dow,  10  Mich.  319,  §  490. 
V.  Faris,  1  Mo.  517,  §  1084. 
V.  Godfrey,  36  Vt.  380,   §  480Z. 
V.  Preble,  11  Allen,  370,  §§  480c, 
480e. 
Chambers  v.  King  Wrought  Iron 

Bridge  Co.  16  Kan.  270,  §  1310. 
Champlin  v,  Laytin,  6  Paige,  189, 

§  322. 

Chandler  v.  Fulton,  10  Tex.  2.  §  480. 

V.  Grieves,  2  H.  Bl.  606,  §  1404. 

V.  Mason.  2  Vt.  193,  §  1028. 

V.  Spear,  23  Vt.  388.  §  1117. 

Chapcott  V.   Curlewis,  2  Moody  & 

Rob.  484,  §  915. 
Chapman  v.  Annett,  1  Carr.  &  Ku-. 
553,  §  967. 


Chapman  v.   Colbv,  47  Mich.   46, 
§  1405. 
V.  Holmes,  10  N.  J.  L.  20,  §  480f. 
V.  Keane.   3    Ad.    &    El.    193, 

§§  097,  703,  706. 
V.  Lijiscombe,     1    Johns.    294, 

§  990. 
V.  Sims,  53  Miss.  154,  §  316. 
V.  West,  17  N.  Y.  125,  §^  341, 
342a,  351. 
Chapman  Township  v.  Herrold,  58 

Pa.  St.  106.  §  1412. 
Charlotte  v.  Chouteau,  25  Mo.  465, 

§  1405. 
Chase  V.  Hogan,  6  Bosw.  431,  §  1330. 
V.  Sycamore  &  C.  P.  R.  R.  Co. 
38  111.  215.  §  1387. 
Chatham  v.  Bradford,  50  Ga.  827, 

§  165. 
Chaudron  v.   Magee,    8  Ala.    570, 

§g  348,  362. 
Cheeseborough  v.  Millard,  1  Johns. 

Ch.  409,  §  203. 
Cherry  v.  Baker,  17  Md.  75,  §§  1251. 

1414. 
Cheshu-e  v.  Taylor,  29  la.  492,  §  956. 
Chesterman  v.  Gardner,  5  Johns. 

Ch.  29,  §  273. 
Chew  V.  Barnet,  11  S.  &  R.  389, 
§  231. 
V.  Calvert,  Walk.  54,  §  308. 
Chicago  V.  Laugless,   66  111.    361, 
§  480g. 
V.  McCarthy,  75  lU.  602,  S480(/. 
V.  Witt,  75 'lU.  211,  §§  29,  206, 
210. 
Chicago  &  Alton  R.  R.  Co.  v.  Scott, 

42  Bl.  132,  §§  566,  572. 
Chicago,  etc.  R.  Co.  v.  Bensley,  69 
111.  630,  §  568. 
V.   Klauber,    9    lU.   App.   613, 

§  1409. 
V.  McCool,  20  Ind.  140,  §  566. 
Chicago,  R.  I.  &  P.  R.  Co.  v.  Ken- 
nedy, 70  111.  350,  §  307. 
Chicago  &  R.  I.  R.  Co.  v.  Warren, 

16  111.  502,  §  574. 
Chicago  T.  P.  P.  Co.  v.  Lowell,  60 

Cal.  454,  §  306. 
Chick    V.   Pillsbury,   24    Me.    458, 

§§  794,  805,  810,  822. 
Chickering  v.   Failes,  26  El.  507, 
§  1354. 
V.  Fowler,  4  Pick.  371,  §  563. 
Childs  V.  Nelson,  7  Dana,  381,  §  383. 

V.  Wyman,  44  Me.  433,  §  87. 
Cliittenden    v.   Hobbs,   9    la.   417, 

g^  1343,  1346,  1363. 
Choteau  v.  Jones,  11  lU.  300,  §  196. 


TABLE   OF   CASES   CITED. 


XXVll 


Chouteau  v.  Pierre,  9  Mo.  3,  §  1405. 
Christmas  v.  Mitchell,  3  Ired.  Eq. 

535,  §§  15.  308,  335. 
Christy    v.    Home,    24    Mo.    242, 

§  1281. 
Church    V.   Barlow,    9    Pick.   547, 
§  715. 
V.  Gilmore,  1  Wood,  656,  §  143a, 
Churcher  v.  Guernsey,  39  Pa.  St. 

84,  §  29. 
Churchill  v.  Grove,  1  Ch.  Cas.  35, 

g§  240,  375. 
Cicero,    etc.  Co.  v.  Craighead,  28 

Ind.  274,  g  1417. 
Cincinnati  v.  Bickett,  26  Ohio  St. 

49,  §§  715,  1036. 
Cincinnati,  etc.  R.  Co.  v.  Pontius, 

19  Ohio  St.  221,  §§  555,  558. 
Citizens'  Bank  v.  GrafHin,  31  Md. 

507,  §  480w. 
City  Bank  v.  Cutter,  3  Pick.  514, 

§  1397. 
City  Council  v.  Montgomery,  etc. 
Co.  31  Ala.  76,  §  1410. 
V.  Page.  1  Speers'  Eq.  159,  §  7. 
City  N.  B.  V.  Goodi-ich,  3  Colo.  137, 

§  87. 
Citv  Paying  for  Openmg  Streets, 

20  La.  An.  497,  §  1123.    • 
Clabaugh  v.   Byerly,    7  Gill,   354, 

§  208. 
Clafflin  V.  Lenheim,  66  K  Y.  301, 

§671. 
Claflin  V.   Rosenberg,  43  Mo.  439, 

§67. 
Claggett  V.  Crall,  12  Kan.  393,  §  96. 
Claiborne  v.  Hdhnes,  51  Mss.  146, 

§§  225,  303. 
Glamorgan    v.    Lane,    9  Mo.   446, 

§§  254,  255. 
Clapp  V.  Rogers,  12  N.  Y.  283,  §  512. 
Claridge  v.  Dalton,  4  M.  &  S.  226, 

§  1008. 

Clare  v.  The  State,  5  la.  286,  §  1404. 

Clai-k    V.    Adams,    33    Mich.    159, 

§§  1355,  1395. 

V.  Baker.  11  Mete.  188,  §  ASOn. 

V.  Bosworth,  51  Me.  528,  §  277. 

V,  Commonwealth,  29  Pa.  St. 

129,  §  1412. 
V.  Drake.  63  Mo.  354,  §  25. 
V.  Faxton.  21  Wend.  153,  §  552. 
V.  FuUer,  39  Conn.  238,  §  679. 
V.  Helms.  1  Root.  486,  §  348. 
V.  Keliher,  107  Mass.  406,  g  640. 
V.   Lichtenberg,   33  Mich.  307, 

§  1320. 
V.   Remington,    11    Met.    361, 
§389. 


Clark    V.   Thayer,    105  Mass.    216, 
§94&. 
V.   Trindle,    52    Pa.    St.    492, 

§246. 
V.  Wells,  45  Vt.  4,  §§  72,  74. 
Clai-ke  V.   Courtney,    5    Pet.    319, 
§280. 
V.  Crego,  47  Barb.  599,  §  598. 
V.  Morey,  10  Johns.   69,  §  753, 
V.   Shavpe,   3    M.    &  W.    166, 
§926. 
Clarkson  v.  Morgan,  6  B.  Mon.  441, 

§364. 
Claudet  v.   Pruice,   2    Q.    B.   406, 

§  1173. 
Clay  V.  Edgerton,  19  Ohio  St.  549, 
§§  420,  422. 
V.  Wi'llan,  1  H.   Blackst.  298, 
§  542. 
Claybrook    v.     Wade,     7     Coldw, 

(tenn.)  555,  §  1030. 
Clavcomb  v.  Munger,  51  111.  378, 

§'480c. 
Claypole  v.  Houston,  12  Kan.  324, 

§  1035. 

Clayton  v.  Blakev,  8  T.  R.  3,  §  586. 

V.  Hunt,  3  Camp.  27,  §  539. 

V.  Mav,  67  Ga.  769,  §  1410. 

Clegg  V.  Cotton,  3  Bos.  &  Pul.  239, 

§^  946,  947. 
Clement  v.  Brooks,  13  N,  H,  92, 

§  1229. 
Clements  v.  Welles,  L.  R.  1  Eq.  200, 

§§  15,  65a,  288,  307. 
Clerks'  Savings  Bank  v.  Thomas,  3 

Mo.  App.  3"67,  §§  388,  662,  683. 
Cleveland,  etc.  R.  Co.  v.  CuiTan, 

19  Ohio  St.  1,  §  558. 
Cleviuger  v.    Hill,    4    Bibb,    498, 

§§  348,  357. 
Clifton  V.   United  States,  4  How. 

242,  §  1280. 
Clode  V.  Bayley,  12  M.  &  W.  51, 

§§  717,  735. 
Clodfelter  v.   Cox,    1  Sneed,   330, 

§§  433,  435,  436. 
Clore    V.    Graham,    64    Mo.    249, 

§49. 
Clough  V.  Hoffman,  5  Wend.  499, 

§  1387. 
Clymer's    Lessee    v.    Dawkins,    3 

How.  690,  §  280. 
Cobb  V.  Stokes,  8  East,  358,  §§581, 
595 
V.  Wood,  32  Me.  455,  §  1138. 
Cobbett    V.   Brock,   20  Beav.   524, 

§29. 
Co'bden   v.   Bolton,   3  Camp.   108, 
§549. 


XXVIU 


TABLE   OF   CASES    CITED. 


Coble  V.  Noncmalccr,  78  Pa.  St.  501, 

§50. 
Cochian  v.  BiiTl.  3  Mo.  141,  g  1211 
Cockev  V.  Mil)K'"s  Lessee,  16  Mil 

207."g§  96.  113. 
Cockrell  r.  .Alaney,  3  Tenn.  Ch.  49, 

gij  343a.  369. 
Coif  ec!  V.  Gates,  28  Ark.  43,  §§  1297 

1363. 
Coffin  V.  Lunt,  3  Pick.  70,  §§  585, 
607. 
V.  Ray,  1  Mete.  313,  §  96. 
Cofleman  \:  CampbeU,   87  111.   98 
g  480)1. 
V.   Wilson,  3  Mete.  (Ky.)  543 
g94a. 
Cogan  V.  Cook,  33  Minn.  137,  §  188 
Colby  V.  Inhabitants  of  Westbrook 
57  "Me.  181 ;  3  Am.  Rep.  30.  S  480.7 
CoklweU  V.  Cariington,  9  Pet.  86 

§  48. 
Cole  V.  Allen,  51  Ind.  33.  §  1353. 
V.    Goodwin,    19    Wend.    251 

§g  543,  543,  553,  5-38. 
V.     Wintercost,    3     Tex.    118 
§  1397. 
Coles  V.  Sims,  5  De  G.  M.  &  G.  1 

§50. 
Coleman  v.  BarkleT\%  37  N.  J.  L 
357,  §  288. 
V.    Carpenter,  9   Pa.    St.    178 

§§  781,  783. 
V.  Dobbins,  8  Ind.  156,  §  1404 
Coleman's  Appeal,  75  Pa,  St.  441 

§  1315. 
Colgin  V.  State  Bank,  11  Ala.  333 

§  1193. 
Collier  v.   Baptist,   etc.  Soc.  8  B 

Mon.  68,  §§  1408,  1409. 
Colling  V.  Treweek,  6  B.  &  C.  394 

§  1264. 
Collingwood  V.  Irwin,  3  Watts,  306 

§  480Z. 

Collins  V.  Canty,  6  Cush.  415,  §  648 

V.  New  Eng.  Ii-on  Co.  115  Mass 

23,  §  480o. 

Colman  v.  Watson,  54  Ind.  65,  §  49 

Colomer  v.  Morgan,  13  La.  An.  202 

§§  149.  190. 
Colt    V.    Barnard,    18    Pick.    260 
g§  738,  739. 
V.  Du  Bois.  7  Neb.  394,  §  96. 
V.  MiUer,  10  Cush.  51,  §  1397. 
V.  Root,  17  Mass.  239,  §  1401. 
Colquitt  V.  Thomas,  8  Ga.  358,  t^  11. 
Columbet  v.  Pachecj,  46  Cal.  650, 

§  1215. 
Colville,    In   re,   1    Montag.    110, 
§450. 


Colvin  r.  Rich,  3  Post,  175,  g  434. 
Colyer  v.  Finch,   5  H,   &  L.   905, 

§§  13,  47. 
Comer  v.   Jackson,    50    Ala.    884, 

§  1359. 
Commercial  Bank  v.  Clark,  28  Vt. 
325.  §  968. 
V.  Cunningham,  24  Pick.  270, 

^■g  272,  683a. 
V.  Gove,  15  La.  113,  §  864. 
V.  Hughes,  17  Wend.  94,  §§  733, 

943,  1003. 
V.  Strong,  28  Vt.  316,  §  866. 
Commercial  Bank  of  I^ake  Erie  v. 

Norton,  1  Hill,  501,  g  653. 
Commercial  Bank  of  Rochester  v. 

Colt,  15  Barb.  506,  §  439. 
Commonwealth  v.  Emery,  2  Gray, 
80,  §  1257. 
V.  Essinger,  1  Binn.  (Pa.)  273, 

§  1262. 
V.    Goldstein,    114    Mass.    373, 

§  1361. 
V.  Intoxicating  Liq.  13  Allen, 

561,  §  1175. 
V.  Maloy,  57  Pa.  St.  391,  §  480ji. 
V.  Peckham,  2Gray,  514.  §  1416. 
V.  Powell,  11  Graft.  828,  §  87. 
V.  Railroad.  108  ilass.  7,  §  558. 
V.  Rhochv,  0  B.  Mon.  171,  §  121. 
Comstock  V.  Farnum,  2  Mass.  96, 
§431. 
V.  Hier,  73  N.  Y.  269.  §  94b. 
Condit  V.  Blackwell,  19  N.  J.  Eq. 

193,  §  1405. 
Cone  V.  Baldwin,  12  Pick.  545,  §  87. 
Cougar  V.  C.  &  N.  W.  R.  R.  Co.  34 

Wis.  157,  §  674. 
Congdon  v.  Anderson,  30  lU.   95, 
§  1233. 
V.  Reed,  7  R.  I.  576,  §  403. 
Conn  V.  Penn,  1  Pet.  C.    Ct.   496, 

§  748. 
Connecticut  v.  Bradish,    14  Mass. 

896,  t$§  303,  331a. 
Connecticut  River  Bank  v.  French, 

6  Allen,  313,  §  537. 
Conover  v.  Van  Mater,  18  N.  J.  Eq. 

481,  §  316. 
Connersville,    Pres't   &   C.    of,  v. 
Woodleigh.  7  Blackf.  103,  §  1354. 
Contee  v.  Pratt,  9  Md.  73,  §  1414. 
Converse  v.   WaiTen,    4   la.    158, 

§  1348. 
Cook  V.  Farren,  34  Barb.  95,  §  1031. 
V.  Mancius,  5  Johns.  Ch,  89, 

§341. 
V.  Mutual  Life  Ins.  Co.  53  Ala. 
37,  §  431. 


TABLE   OF   CASES   CITED. 


XXIX 


Cook  V.  Tallman,  40  la.  133,  §  1411. 
V.  Ti-answell,  3  Moore  R.  513, 

§  1275. 
V.   Travis,   20    N.   Y.   400;    23 
Barb.  838,  §§  97,  205,  279, 
299. 
V.  Wilson,  3  Jur.  N.  S.  1094:  1 
C.  B.  N.  S.  153,  §  1410. 
Cook's  Lessees  v.  Kell,  13  Md.  469, 

§§  118.  226. 
Cooley  V.  Brayton,  16  111.  10,  §  344. 
Coolidge  V.  Charter  Oak  Life  Ins. 

Co.  1  Mo.  App.  109,  §  673. 
Cooper  V.  Bigley.  3  Mich.  463,  §  203. 
V.    Reynolds,     10    Wall.     308, 

§  1057. 
V.  Smith,  25  la.   269,  §§  1084. 

1137. 
V.    Watson,     10    Wend.     205, 
§  480c. 
Cope  V.   Coi-dova,    1    Rawle,   203, 

g563. 
Copeland  v.   Directors  of   Mining 

Co.  33  Mich.  2,  §  1138. 
Copperthwaite  v.  Sheffield,  1  Sandf . 

416,  §  714. 
Coppiu  V.  Fernyhough,  2   Bro.  Cli. 

291,  §  307. 
Corbett  v.  CantUlon,  5  Ir.  Ch.  R, 

126,  §  104. 
Corbin  v.   SuUivan,   47    Ind.   356, 

§316. 
Corbitt    V.    Clenny,   53    Ala.    480, 

§8  307,  310. 
Corby  v.  Butler,  55  Mo.  398,  §  87. 
Cordeviolle,  Succession  of,  v.  Daw- 
sou,  26  La.  An.  534,  §§  147,  149. 
Cordova  v.  Hood,  17  Wall.  1,  §  65a. 
Corn  V.    Sims,    3  Met.   (Ky.)  391, 

§§  103,  267. 
Cornall    v.    DuvaU,    23  Ark.    136, 

§  143a. 
Cornelius  v.  Partain,  89  Ala.  473, 

§  1241. 
Corning  v.  Whyte,  2  Paige,  567, 

§§  342a,  353. 
Cornoy  v.  Da  Costa,  1   Esp.  303, 

§  946. 
Corp  V.  McComb,  1  Johns.  Cas.  328, 

§781. 
Corpman  v.  Baccastow,  84  Pa.  St. 

363,  §§  187,  188,  297. 
Corwin    v.    Merritt,   3  Barb.    341, 

§§  1075,  1130. 
Corev  V.  Cinn.  etc.  R.  Co.  5  la.  357, 

§  1405. 
Cory  V.  Eyi-e,  1  De  G.  J.  &  S.  149, 
§§  48,  65a. 
V.  Scott,  3B.  &  Aid.  619,  §1004. 


Cosser  v.  Collinge,  3  My.  &  K.  283, 
8  321 

Coster  'v.  Bank  of  Ga.  24  Ala.  37, 
§225. 
V.  Thomason,  19  Ala.  N.  S.  717, 
§753. 
Cotton  V.  Hart,  1  A.  K.  Marsh.  56, 

5^8. 
Coulter  V.  Morgan's  Adm'rs,  13  B. 

Mon.  378,  §  480m. 
County  of  Green  v.  Bledsoe,  13  111. 

367,  §g  1226,  1253. 
Course  v.  Shackleford,  3  Nott  & 

McC.  283,  §  738. 
Cove  V.  Cove,  L.  R.  15  Ch.  Div.  639, 

§690. 
Coveny  V.  Hale,  49  Cal.  552,  §§  1190, 

1201. 
Cover  V.  Black,  1  Barr,  493,  §  96. 
Covington  v.  Shepherd,  20  How. 

237,  §  1404. 
Cox  V.   Coventon,   31    Beav.    378, 
§§  15,  34,  331. 
V.  Mathews,  17  Ind.  367,  §  1139. 
V.  Miluer,  23  111.  476,  J^i?  7,  364. 
V.  Strode,  3  Bibb,  373,  §  480c. 
Coy  V.  Coy,  15  JMimi.  119,  §g  96,  323, 

328. 
Crabb    v.    Atwood,    10    Ind.    331, 

k^  1075. 
Crabtree  v.  Breckenridge,  48  111.  91, 

§  65a. 
Craft  V.  Isham,  13  Conn.  28,  §§390, 

418,  419. 
Craft's  Appeal,  43  Conn.  146,  §s  90, 

91. 

Craig  V.  Craig,  5  Rawle,  91,  §  480ni. 

V.    Hawkins,    Hard.   (Ky.)  46, 

§  1138. 

Cram    v.   Sherburne,    14    Me.  >48, 

§  956.  ^ 

Crandell  v.  Vickery,  45  Baa-b.  156, 

§  93a. 
Crane  v.  Turner,  7  Hun,  357 ;  67  N. 

Y.  437,  §  113. 
Crassen  v.  Swoveland,  23  Ind.  437, 

§§  344,  346,  397. 
a-awford    v.    Clark,    15    111.    561, 
§564. 
i;.  jMilligan,  3  Crauch  C.  C,  236, 
§830. 
Crayton  v.    Clark,   11    Ala.     787, 

§434. 
Credlandu.  Potter,  18  Eq.  Cas.  350; 

L.  R.  10  Ch.  8,  §§  110,  231. 
Cregler    v.    Dm-ham,    9   Ind.    375, 

§495. 
Cremer  v.  Higginson,  1  Mason,  323, 
§§  389,  401,  529. 


XXX 


TAELE    OF    CASES    CITED. 


Crittenden  v.  Woodruff,  11  Axk. 

82,  §  1228. 
Crocker  v.  Crocker,  31  N.  Y.  507, 
Rg  67,  G8. 
V.     Diinkin,    6    Blackf.      533, 

§  1159. 
V.  Getcliell,  23  Me.  392,  §  706. 
V.  Gilbert,  9  Cush.  131,  §  1401. 
V.  GuUifer,  44  Me.  491,  i<  72. 
Crocket  v.    ]Mafi:uire,  10    Mo.    34, 

§§  205,  207,  213. 
Crofton  V.    Ornisbv,  2  Sch.  &  L. 

583,  §§  52,  279,  286,  303. 
Ci-ofut  V.  Wood,  3  Hun,  571,  §  209. 
Ci-oix  V.   Sibbert,  15  Pa.   St.   238. 

§94a. 
Cromwell  v.  County  of  Sac.  6  Cent. 

L.  J.  209  (U.  S.),  1877,  §  62. 
Crook  V.  Jadis,  5  B.  &  A.  909,  §§  80, 

82. 
Crooker  v.  Appleton,   25  Me.  131, 

§  1254. 
Ci-osby  V.    Houston,    1    Tex.   203, 

§192. 
Croskey  v.  Chapman,  26  Ind.  333, 

§  307. 
Cross  V.  Bell,  34  N.  H.  82,  §  1280. 

V.  Smith,  1  M.  &  S.  545,  §  743. 
Crossly  v.  Ham,  13  East,  498,  §  94. 
Crouise  v.  Kellogg,  20  111.  11,  g  94a. 
Crow  V.   Robinson,  L.  R.  3  C.    P. 

264,  §  434. 
Crowell    V.    Davis,    12    Met.  293, 
§  1138. 
V.  Galloway,  3  Neb.  215,  §  1366. 
Crowther  v.   Rowlandson,  27  Cal. 

276,  §  1201. 
Culler  V.  Motzer,  13  S.  &  R.  358, 

§280. 
Culpepper  v.  Aston,  12  Ch.  Cas. 

115,  §  338. 
Culver  V.  Felt,  4  Rob.  (N.  Y.)  681, 
§  1169. 
V.  Rhodes,  87  N.  Y.  354,  §  280. 
Cumniings  v.  Stone,    13  Mich.  70, 

§  1410. 
Cunningham    v.    Buckingham,    1 
Ohio,  264,  §§  225.  273. 
V.  Pattee,  99  Mass.  248,  g§  274, 

286,  303. 
V.  Southern  Ex.  Co.  67  N.  C. 

425,  §  1307. 
V.  Wai-nekey,  61  Cal.  507,  §  1217. 
Cupples  V.  Wheelan,   61   Mo.  583, 

§669. 
Curran  v.  Shattuck,   24  Cal.  427, 

§343. 
Currens  v.  Hart,  Hardin,  37,  §  27. 
Cun-ier  v.  Baker,  2  Gray,  224,  §632. 


Currv  V.  Bank  of  Mobile,  8  Port. 

(Ala.)  360.  §  781. 
Cm-tis  V.  Blair,  4  Cush.  309,  §§  10, 
29,  35. 
V.  Leavitt,  15  N.  Y.  194,  §  676. 
V.  Lyman,  24  Vt.   338,  §§  165, 

172. 
V.  Marsh.   4  Jur.   N.   S.    1112, 

§  1410. 
V.  Mundv,  3  Mete.  405,  §S  7,  9, 

246,  275. 
V.  Sacramento,    64     Cal.     102, 

§  1138. 
V.  State  Bank,  6  Blackf.  312, 
§§  852,  1397. 
Gushing  v.  Ayer,  25  Me.  383,  §  97. 

V.  Kurd,  4  Pick.  252,  §  236. 
Custer  r.  Tompkins  County  Bank, 

9  Pa.  St.  27,  §  633a. 
Cutler  V.   Caruthers,   48  Cal.    178, 

§  1414. 
Cutler  V.  Wright,   22  N.   Y.   472, 

§  1405. 
Cuyler  v.  Ferrill,  1  Abb.  169,  §  1411. 

D. 

Dabnev  v.   Stidger,   4   Sm.   &  M. 

749,  §  755. 
Daggett  V.  Whiting,  35  Conn.  372, 

§  94a. 

Daily  v.  State,  10  Ind.   536,  §  1404. 

Dale  V.  Kimpton,  46  Vt.  76,  §  436. 

V.  Wilson,  16  ilinn.  525,  §  1406. 

Daly  V.  Slatter,  4  Carr.  &  P.  200, 

§817. 
Dambmann  v.  White,  48  Cal.  439, 

§§  1201,  1240. 
Dana  v.  Boyd,  2  J.  J.  Marsh,  587, 
§  1269. 
V.  Conant,  30  Vt.  246,  §  1266. 
Danforth  v.  Dart,  4  Duer,  101,  §  10. 
Daniels  v.  Davidson,  16  Ves.  249, 
§§  53,  278,  279,  282,  303. 
V.  Sorrells,  9  Ala.  436,  §  96. 
Dann  v.  Spurrier,  7  Ves.  231,  §  65a. 
DanvUle,  etc.  Co.  v.  State,  16  Ind. 

456,  §  1408. 
Dai-bisliire    v.   Parker,   6  East,   3, 

§§  794,  824. 
Dai-gin  v.  Beeker,  10  la.  571,  §§  96, 

310. 
Darlington  v.   Cominon wealth,  41 

Pa.  St.  68,  §§  1126,  1127. 
Darrance  v.   Pi-eston,   18  la.    396, 

§  1352. 
Dasher  v.  Dasher,  47  Ga.  320,  §  1379. 
Daubenspeck  v.  Piatt,  22  Cal.  330, 

§§  281,  294. 


TABLE   OF   CASES   CITED. 


XXXI 


Davant   v.   Carleton,  53    Ga.  491, 

§  1380. 
Davenport  v.  Gilbert,  4  Bosw.  533, 

g^  836,  861,  864. 
V.  Woodbridge,  8  Me.  17,  §  440. 
Davidson  v.  Graham,  2  Ohio  St. 

131,  §  553. 
Davidson  v.  Petticolas,  34  Tex.  27, 

§  1414. 
Davies    v.    Hopkins,    15    111.    519, 

§  273. 
V.  Sear,  L.  R.  7  Eq.  427,  §§  2^, 

65a. 
V.  Tliomas,  2  Young  &  C.  Exch. 

234,  §  307. 
Davis  V.  Bank  of  Fulton,  31  Ga. 

69,  §  1404. 
V.  BaiT,  9  S.  &  R.  137,  §  431. 
V.  Best,  2  la.  96,  §  1412. 
V.  Bigler,  62  Pa,  St.  241,  §  8. 
V.  Blunt,  6  Mass.  487.  §  278. 
V.  Burt,  7  la.  56,  §§  1346,  1362, 

1369. 
V.  Davis,  48  Vt.  502,  §  1252. 
V.  D.  &  M.  R.  R.  Co.  20  Mich. 

105,  §  674. 
V.  Duffle.  1  Abb.  App.  Dec.  486, 

g  1317. 
V.  Earl  of  Strathmore,  16  Ves. 

419,  §§  231a.  240. 
V.  Francisco,  11  Mo.  572,  §  739. 
V.  Hanley,  12  Ark.  645,  gg  805, 

809. 
V.  Keyes,  38  N.  Y.  94.  §  499. 
V.   McCready,    17   N.   Y.    280, 

g  94a. 
V.  Ownsby,  14  Mo.  170,  §  239. 
V.  Patty.  42  Miss.  509,  §  1374. 
V.  Planters'  Banlv,  1  S.  &  M. 

261,  §  812. 
V.  Wilbourne,  1  Hill,  S.  C,  28, 

§  480cZ. 
V.  Willan,  2  Stark.  279,  §  538. 
V.  Williams,  Peck  (Tenn.),  191, 

8  9|9_ 

V.    Williams,    16    Q.    B.    546, 
§  480/1. 
Davis,  Jackson  ex  dem.   v.   Bron- 

son,  4  Cow.  51,  §  1178. 
Davis  Sewing  Machine  Co.  v.  Jones, 

61  Mo.  409,  §§  395,  400,  1389. 
Dawson  v.  Danbury  Bank.  15  Mich. 
489,  §§  281,  294,  299. 
V.  Dawson,  Rice  Eq.  243,  §  101. 
V.    Goodyear,    43    Conn.    548, 

§  94&. 
V.  Kittle,  4  Hill,  107.  §  480n. 
V.  Prince,  2  D,  &  J,  41,  §  10. 
Day  V.  Clark,  25  Vt,  397,  §  200. 


Day  V.  Newark  India  Rubber  Co.  1 

Blatchf.  628,  §  1306. 

V.  Walmsley,  33  Ind.  145,  §  688. 

V.  Zimmerman,  68  Pa.  St.  72, 

§  372. 

Daylight  Burner  Co.  v.  Odlen,  51 

N.  H.  56 ;  12  Am,  Rep,  45.  §  652, 

Dean  v.  Border,  15  Tex,  298,  §  1268. 

Bearing  v.  Watkins,   10  Ala.   20, 

§  231, 
Dearie  v.  HaU,  3  Russ.  1,  §  433. 
Deason    v.   Taylor,    53    Miss,    697, 

g^  307,  330. 
Debell   v.  Foxworthy,    9   B,    Mon. 

228,  §  359. 
Debuys  v.  Mollere,   3  Mart.  N,  S, 

318,  §  956, 
De  Cells  v.  United  States,  13  Ct.  of 

CI,  117,  ^  1411. 
Deering  v\  Flanders,  49  N.  H.  225, 

§  494. 
Deford  v.  Reynolds,  36  Pa.  St.  325, 

§^  483,  494. 
Deiti-ich    v.   Lang,    11    Kan,    636, 

g  1045, 
Delacroix  v.  Cenas,  20  Mart.  (La.) 

356,  g  480c. 
De  Lane  v.   Moore,   14  How.  253, 

g224, 
Delano    v.    Jopling,    1    Litt,    117, 

i5  1405, 
Delogney  r.  Smith.  3  La,  518,  g  1113. 
Delong  I'.  Brainard,  2  Thomp.  &  C. 

1,  §g  1212,  1213. 
Den  V.   Adams,    12  N.   J.   L.    99, 
§g  581,  596. 
V.  Bennett,  4  Ired.  (N,  C.)  122, 

g600. 
V.   Mackay,    2    N.   J.   L.    419, 

§  588. 
V.  Mcintosh,  4  Ired.  291,  §  607. 
Denn    v.    Rawlins,    10   East,    281, 

§600, 
Dennis  v.  Barbour,  6  S.  &  R.  420, 
§  1258. 
V.  Burrett,   6  Cal.  670,   §§  97, 

208. 
V.  Morrice,  3  Esp.  158,  §  945. 
Denniston  v.  Bacon,  10  Johus.  198, 
§94&. 
V.  Imbrie,  3  Wash.  C.  Ct.  396, 
§748. 
Denny  v.  Cabot,  6  Mete.   82,  §  525. 
V.  Palmer,  5  Ired.  610,  §§  946, 
991. 
Denster  v.  McCamus,  14  Wis.  307, 

§203, 
De  Ruvter  v.  Tnistees,  etc.  2  Barb. 
Ch.  556,  §§  97,  103. 


xxxu 


TABLE   OF   CASES   CITED. 


Deshon  v.  Fosdick,   1  Woods,  286, 

§382. 
Despau  v.  Swindler,  3  Mart.  N.  S. 

705,  ^  1413. 
Detroit  v.   Blakely,   21    Mich.   84. 

^  2^. 
Dottinar  r.  Metropolitan,  etc.  Bank, 

1  H.  &  M.  641,  t?  10. 
Beveling  v.   Ferris,  18    Ohio,  170, 

§S  943,  944. 
De  Vendal  v.  ]\Ialone,  25  Ala.  272, 

§  225. 
Dewey  v.  Littlejohn,   2  Ired.  Eq. 

495,  §  245. 
Dewitt  V.   Moulton,   17    Me.    418, 

§§  112,  125. 
Dewes  v.  Colorado  Co.  32  Tex.  570, 

§  1412. 
Dews  V.  OleviU,  3  Baxt.  432,  §  436. 
Dev  V.  Dunham,  2  Johns.  Ch.  182, 

§§  186,  244. 
De  Yampert  v.  Brown,  28  Ark.  166, 

§  207. 
Diamond  v.  Lawrence  Co.  Bank,  1 

Wrio^ht,  353.  §  371. 
Dicken    v.   Hall,    87  Pa.   St.    379, 

^  829. 
Dickens  r.  Beal,  10  Pet.  572,  §§  829, 

1001,  1004.  1005. 
Dickenson  r.   Breeden,  30  111.  279, 
§  1404. 
V.  Glenny,  27  Conn.  104,  §  113. 
Dickerson  v.  Campbell,  32  Mo.  544, 

§45. 
Dickey  v.  Lyon,  19  La.  544,  §§  284, 

286. 
Dickinson  v.  Dickinson,  25  Gratt. 
321,  §  515. 
V.  Hall,  14  Pick.  217,  §  94a. 
Diehl  V.  Page.  3  N.  J.  Eq.  143,  §§  44, 

65a. 
Digman  v.  McCollum,  47  jMo.  372, 

§§  113,  118,  205,  214. 
Dill  V.  Camp,  22  Ala.  249,  §  1253. 
Dhnon  v.  Dunn,  15  N.  Y.  498,  §  208. 
Disbrow  v.  Jones,  HaiTing.  Ch.  48, 

§281. 
Distilled  Spirits,  The,  11  Wall.  356, 

§§  672,  677,  687,  689,  690. 
Division  of  Howard  Co.   15    Kan. 

194,  §  1404. 
Dix  V.  Cobb,  4  Mass.  508,  §§  434, 
436. 
V.  Flanders,  1  N.  H.  246,  §  1390. 
Dixon  V.  Doe,  1  Sm.  &  M.  70,  §§  235, 
246,  273,  278. 
V.  Dunham,  14  111.  324,  §  576. 
V.  Frazer.    1  E.   D.  Smith,  32, 
§  391. 


Dixon  V.  La  Coste,  1  Sm.  &  M.  107, 

§  373. 
V.  Nichols,  39  111.  372,  §  1415. 
Dobbin  v.  Bradley,  17  Wend.  422, 

§399. 
Dobree  v.  Eastwood,  3  Carr.  &  P. 

250,  §  795. 
Dodd  V.  Atkinson,  Com.  Dig.  PI. 

C.  75,  §  1391. 
V.  Bratt.  1  Mmn.  270.  §  434. 
Dodds  V.   Hills,   2  H.   &  M.  424, 

§§  11,  34. 
Dodge  V.  Bank  of  Kentucky,  2  A. 

K.  Marsh.  610,  §  757. 

V.  Coffin,  15  Kan.  277,  §  1405. 

V.  Favor,  15  Gray,  82,  §  480ft. 

V.  Potter,  18  Barb.  193,'§  171. 

Doe  V.  Allsop,  5  B.  &  Add.  142, 

§231. 
V.  Archer.  14  East,  245,  §  639. 
V.  Baker,  2  Dev.  270,  §  593. 
V.     Bank     of      Cleveland,      3 

McLean.  140.  ^^,  225. 
V.  Bell,  5  T.  R.  471,  §  586. 
V.  Brown,  8  Blackf.  443,  §  1253. 
V.  Calvert,  2  Camn.  387,  §  649. 
V.  Chaplin,  3  Taunt.  120,  §  616. 
V.  Ci-ick,  5  Esp.  196,  §  627. 
V.  Goldwin,  1  G.  &  D.  463;  2 

Ad.  &  El.  143.  ,5^  619,  701. 
V.  Hazell,  1  Esp.  94,  §  611. 
♦     V.  Howard,  11  East,  498,  §  612. 
V.  Hulme,  2  Mann.  &  Rv.  433, 

§  617. 
V.  Lea.  11  East,  312,  §  609. 
V.  Martin.   1   M.    &  Rob.   242, 

§  1290. 
V.  Miller,    2   Carr.    &  P.    348, 

§609. 
V.  Milward,  3   M.   &  W.   328, 

§645. 
V.  Mizem,   2  Mood.   &  R.    56, 

§  620. 
V.  Murless,  6  M.  &  S.  110,  §  626. 
V.  Porter,  3  T.  R.  13,  §  607. 
V.  Quiglev,  2  Camp.  .505,  §  594. 
V.  Read,  12  East,  57,  §  623. 
V.  Robinson,  3  Bing.  N.  C.  677, 

§  621. 
V.  Saver,  3  Camp.  8,  §  593. 
V.  Scott,  6  Bing.    362,   §§  607, 

611,  634. 
V.  Spence,  6  East,  120,  §  612. 
V.  Spittv.  3  Barn.  &  Ad.    182, 

§  1288. 
V.  Stennett,  2  Esp.  716,  §  581. 
V.  Summersett,  1  B.  &  Ad.  135, 

§616. 
V.  Sweetser,  2  Ind.  649,  §  1121. 


TABLE   OF    CASES    CITED. 


XXXIU 


Doe  t'.  Walters,  10  B.  &    C.  63G, 
§S  619,  701. 
V.  Watkiiis,  7  East,  551,  §§  613, 

627. 
V.  Watts,  7  D.  &  E.  83,  §§  581, 

595. 
V.  Wilkinson,  13  Ad.  &  El.  743, 

§  638. 

V.  WiUiams,  6  B.  &  C.  41,  §  636. 

V.  Woodman,  8  East,  338,  §  628. 

V.  Wrij>htman,  4  Esp.  5,  g  629. 

Dogan  V.  Dubois,  3  Rich.  Eq.  85, 

§  94a. 
Doherty  v.  Perry,  38  Ind.  15,  §  94a. 
Dole    V.    Thurlow,    12    Mete.    157, 
§96. 
V.  Youn-?,  24  Pick.  250,  §§  413, 
425,  '426. 
Dolin    V.    Gardner,    15    Ala.    758, 

§  205. 
Dolman  v.  Orchard,  3  Carr.  &  P. 

104,  §  483. 
Donaldson  v.  Donaldson,  Kay,  711, 
§  430. 
V.  Means,  4  Dall.   109,  §§  956, 
975. 
Donath  v.  Broomhead,  7  Pa.   St. 

301,  §  469. 
Donley  v.  Camp,  33  Ala.  659,  §  398. 
Donnelly  v.  Howie,  Hayes  &  J.  436, 

i^ij  956"  966. 
Dooley  v.   Wolcott,   4  Allen,  406, 

g^  14,  345,  374. 
Ddolittle  V.  Cook,  75  111.  354,  §§  203, 

310. 
Doon  V.  Donaher,  113  Mass.  151, 

§  1376. 
Dorchester  v.  New  Eng.  Bank,  1 

Cush.  177,  ^  480o. 
Dorsey  v.  Hall,  7  Neb.  465,  §  96. 
V.  Watson,  14  Mo.  59,  §§  973, 
975. 
Doswell  V.  Buchanan,  3  Leigh,  365, 

g§  97,  103,  214. 
Douglass  V.  Howland,  34  Wend.  35, 
§S  388,  395,  401. 
V.     McCrackm,     53    Ga.     596, 

§339. 
V.  Rav,  4  Durnf.  &  East,  553, 

§  1301. 
V.  Reynolds,  7  Pet.  113,  §§  392, 

406,  407. 
V.  Scott,  8  Leigh,  43,  §  87. 
Dow  V.  N.  J.  Steam  Co.   11  N.  Y. 
485,  §  553. 
V.    Say  ward,    12    N.    H.    271, 

§  535. 
V.    School    Dist.    46    Vt.    108, 
§  1312. 


Dowle  V.  Saunders,  3  Hem.  &  Mill. 

243,  g  56. 
Down   V.   Rice,     11    Wend.     178, 

§  1177. 
Downer    v.   Garland,    21  Vt.  363, 
§348. 
V.  Remer,  21  Wend.  20,  §§  903, 
904. 
Downs  V.  Planters'  Bank,  1  Sm.  & 

M.  361,  §  805. 
Doyle    r.    Bradford,    90    El.    416, 
§  1411. 
V.  Gibbs,  6  Lans.  180,  §  601. 
V.  Peerless,  etc,   Co.  44  Barb. 

339,  §  214. 
V.  Steyens,  4  Mich.  87,  §§  96, 

208,  273,  276. 
V.  Teas,  5  111.  203,  §§  7,  13,  113, 
307,  601. 
Drake  v.  Crowell,  40  N.  J.  L.  58, 
§  851. 
r.  Flewellen,  33  Ala.  106.  ^1408. 
V.  Hale,  38  Mo.  346,  §  1037. 
Draper  v.  Draper,  59  111.  119,  §  1333. 

V.  Weld,  13  Gray,  580,  §  87. 
Dresser  v.  Missouri,  etc.  R,  Co.  93 
U.  S.  93,  §  93. 
V.  Norwood,  17  C.  B.  N.  S.  466, 

§  687. 
V.  Wood,  15  Kan.  344,  §  348. 
Drew  V.  Lord  Norbury,  3  Jones  & 
L.  367.  §  104. 
V.  Towle,  37  N.  H.  413,  §  94a. 
Driscoll,  In  re,  1 1.  R.  Eq.  285,  §  104. 
Drinkwater  v.  Tebbetts,  17  Me.  16, 

§  936. 
Dronillard  v.  Whistler,  29  Ind.  552, 

§§  1037,  1041,  1057. 
Drummond  v.  Prestman,  12  Wheat. 

515,  §  405. 
Dryden  v.  Frost,  8  M.  &  C.    670, 

§§  47,  56,  690. 
Drysdale  v.  Mace,  2  Sm.  &  Gif.  325, 

§  331, 
Dubois  V.  Barker,  4  Hun,  80,  §§  25, 
26. 
V.  Hermance,    56    N.    Y.   673, 
§  480iu. 
Duchess    of     Kingston's    Case,    2 
Smith  Lead.  Cas.  705  (7  Am.  ed.), 
§  314. 
Ducoway  v.  Gait,  30  Ark.  190,  §96. 
Dudley    v.    Witter,    46    Ala.   664, 

§g  307,  338. 
Duff  V.  Budd,  3  Brod.  &  Bing.  177, 

§  560. 
Duflfield  V.  Scott,  3  T.  R.  374,  §  418. 
Dugard  v.  Edwards,  50  Barb.  289, 
§  480?i. 


XXXIV 


TAULE   OF   CASES   CITED. 


DugG:<an  r.  King,  Rice,  1239,  §  994. 

Duke  V.  Bohm,  16  Minn.  306,  §  679. 

Dunbai'  v.  Brown,  4  McLean,  166, 

§390. 

V.  Fi-edeunick,  2  Ba.  &  Be.  310, 

§48. 
V.  Rawles,  28  Ind.  225,  §  72. 
V.  Tyler,  44  Miss.  1,  ^  98.3. 
Duncans.  Jaudon,  15  Wall.  165, 
§  6835. 
V.  Matney,  29  Mo.  368.  §  1089. 
Duncan  &  Sherman  v.  Gilbert.  29 

N.  J.  L.  521,  §  946. 
Duugan  v.  Am.  Ins.  Co.  52  Pa.  St. 
253,  §  96. 
V.  ]\mier,  37  N.  J.  L.  182,  §  1358. 
Dunham    v.    Dev,    15   Jolins.   555, 

§§  244,  246. 
Dunks  r.  Fuller,  32  Mich.  242,  §  278. 
Dunlap  V.  Higgins,  1  H.   L.  Cas. 
381,  §  383. 
V.  Wilson,  32  111.  517,  §§  273, 
278,  288,  689. 
Dunn  V.  Games,    1    McLean,  321. 
§348. 
V.  Weston,  71  Me.  270,  §  94&. 
Dunning  v.  Foster,  42  N.  H.  165. 
§  1222. 
V.   Smith.   3    Johns.   Ch.    344, 
§  660.' 
Durbin    v.    Waldo,    15    Wis.    532, 

§  1206. 
Durden    v.    Smith,   44   Miss.   548, 

§984. 
Durham  v.  Price,  5  Yerg.  300,  §  732. 
Dunossett    v.    Hale,  38    Mo.   346, 

§  1057. 
Duryee  v.  Dennicon,  5  Johns.  248, 

§975. 
Dutch,  etc.  Co.  v.  Mooney,  12  Cal. 

534,  §  1408. 
Dutton  V.  Warschauer,  21  Cal.  609, 

§§  65a,  373. 
Duxbuiy  V.  Vermont,  etc.  R.  Co. 

26  Vt.  751,  §  480?M. 
Dwight  V.  Emmerson,  2  N.  H.  159, 
§73S. 
V.  Scoville,  2  Conn.  654,  §  1021. 
Dyer  v.  Flint,  21   111.  80,  §§  1412, 
1413. 
V.  Hargi-ave,  10  Ves.  506,  §  65a. 
V.  Peai-son,  3  B.  &  C.  38,  §653. 


E. 


Eagle  Bank  v.  Chapin,  3  Pick.  180, 
§  1281. 
V.    Hathaway,    5    Mete.    312, 
§§  717,  914. 


Earl    r.   JlcVeigh,   91  U.   S.   503, 
§  1350. 
V.    Van  Alstine,  8  Barb.  630, 
§  480i. 
Earl  of  Lonsdale  v.  Nelson,  2  B.  & 

C.  302.  §  480/i.. 
Early  v.  Doe,  16  How.  610,  §§  1106, 

1116. 
East    V.   Thoroiighgood,   1   Croke, 

834,  §  1387. 
East  Saginaw  &  St.  Clair  R.  R.  Co. 
V.  Benham,  28  Mich.  459,  §  1127. 
East  Tennessee  v.  Gaskell,  2  Lea 

(Tenn.),  742,  §  1404. 
Eastbrook  v.  Eastbrook,  64  Barb. 

421,  §  1033. 

Eastman  v.  Amoskeag  Manf.  Co. 

44  N.  H.  143,  §  1280. 

V.  Bennett,  6  Wis.  232,  §  1226. 

V.  Crosby,  8  Allen,  206,  §  1405. 

V.  Little.  5  N.   H.  290;  4  Hill, 

92.  §:i  1109,  1110. 
V.  Thurman,  24  Cal.  379,  §  737. 
Ebner  v.  Goundes,  5  Watts  &  S.  49, 

§96. 
Eck  V.  Hatcher,  58  Mo.  235,  §§  10, 

24. 
Eddy,  The,   5  Wall.   481,  §§  569, 

577a. 
Edmeston  v.  Lyde,  1  Paige,   637, 

§§  342a,  353. 
Edminster  v.  Higgins,  6  Neb.  269, 

§90. 
Ednions  v.  ToiTence,   48  Ala.  38, 

§316. 
Edmonston  v.   Drake,  5  Pet.  624, 

§408. 
Edwards  v.  Banksmith,  35  Ga.  213, 
§  341. 
V.   Cahawba,  14  La.  An.  224, 

§  541. 
V.  Martin,  L.  R.  1  Eq.  121,  §  433. 
V.  McFall,  5  La.  An.  167,  §  494. 
V.  Mon-is,  2  A.  K.  Marsh.  65, 

§48. 
V.   Thomas,   2  Mo.   App.   282, 

§§  88,  662,  682. 
V.    Thompson.    71   N.    C.    177, 

§§  246,  273,  278,  286. 
V.   Trumbull,  50   Pa.   St.  509, 
§187. 
Ehle  V.  Brown,  31  Wis.  404,  §  296. 
Hchelberger  v.  Finlev,  7  Harr,  & 

J.  381,  §  1009. 
Eisenhart  v.  Slaymaker,  14  S.  &  R. 

153,  §  1281. 
Eleev.  Wait,  28  Bl.  70,  §S  1063, 1140. 
Eldridge    v.   Walker,   80   III   270, 
§358. 


TABLE    OF    CASES    CITED. 


XXXV 


Ellershaw  v.  Magniac,  6  Excli.  570, 

§477. 
Ellis    V.    Jaszynsky,    5    Cal.    444, 
§  1221. 
V.   Kreutzinger,    27    Mo.    311, 

§438. 
V.  Lull,  45  N.  H.  419,  §  1245. 
V.  Paige,  3  Pick.  71,  §§  585,  607. 
V.  Reddin,  12  Kan.  306,  §  1412. 
Elliott  V.  Eddins,  24  Ala.  509,  §  1101. 

V.  Stone.  12  Cush.  174.  §  635. 
Ellsassar  v.   Hunter,   28  Cal.    279, 

§  1329. 
Ellsworth  V.  Moore,  5  la.  286.  §  1414. 
Elsey  r.  Lutyens,  8  Hare,  159,  §  260. 
Elwood  V.  Deifeudorf,  5  Barb.  412, 
§  480HI. 
V.    Flannigan,    104  U.    S.  562, 
§  1404. 
Ely  V.  Wilcox,  20  Wis.  523,  §§  203, 

210,  288. 
Embury  v.    Conner,   2  Sandf.   98, 

§205. 
Emeric  v.  Alverado,  64  Cal.  529, 

§  1201. 
Emery  V.  Gas  Co.  28  Cal.  345,  §  1123. 
Emmett  v.  Butler,  7   Taunt.    599, 

§486. 
Emmons  v.  Murray,  16  N.  H.  385, 
§§  273,  274,  278. 
V.  Scudder,  115  Mass.  367,  §  603. 
Empii-e  Bank,  l7i  re,  L.  R.  5  Ch. 

358.  §  674. 
Empire  T.  Co.  v.  Oil  Co.  63  Pa.  St. 

14,  §  558. 
English  V.  Waples,  13  la.  570,  §  97. 
Eplev  V.  Witherow,  7  AVatts,  163, 

§§'10,  29,  30,  279. 
Erie,  etc.  Transp.  Co.  v.  Dater,  8 

Cent.  L.  J.  293,  §  548. 
Erickson  v.   Rafferty,   79  111.    209, 

§§  27,  185. 
Erskine  r.   Steamboat  Thames,    6 

Mo.  371,  §  573. 
EsdaUe  v.  Sowerby,  11  East,  114, 

§991. 
Espin  V.  Pemberton,  3  De  G.  &  J. 

547,  §§  35,  56,  65o,  674. 
Espy  V.  Lake,  10  Ha.  260,  §  10. 
Essex  V.  Baugh,  1  Y.  &  C.  Ch.  620, 

§260. 
Estate  of  Leiman,  32  Md.  225.  §  225. 
Estate  of  Palomeres,  63  Cal.  402, 

§  1136. 
Esterbrook  Steel  Pen  Co.  v.  Ahern, 

3  N.  J.  Eq.  341,  §  1414. 
Estrella,  The,  4  Wheat.  298,  §  1413. 
Etherington  V.  Parrot,  1  Salk.  118, 
§671. 


Etting  V.  Schuylkill  Bank,  2  Pa.  St. 

355,  §§  797,  840. 
Eureka,  etc.  Co.  v.  Sup.  Ct.  etc.  5 

W.  Coast  Rep.  179,  §  1140. 
Evans  t'.  BickneU,  6  Ves.  Jr.  173, 
§56. 
V.     Drummond,    4     Esp.     89, 

§§  486,  490. 
V.  Evans,  9  Paige,  178,  §  724. 
V.  Kymer,  1  Barn.  &  Ad.  528, 

§945. 
V.  Sweet,  Ry.  &  M.  83,  §  1273. 
Evansville,  etc.  R.  Co.  v.  Andi-o- 
scoggin  Mills,  22  Wall.  09  i, 
§  554. 
V.  Smith,  65  Ind.  92,  §  1417. 
V.  Young,  28  Ind.  516,  §  553. 
Everett  v.   Saltus,  15  Wend.  474, 

§§  653,  669. 
Ewart  V.  Cochrane,  4  Macq.   117, 

§65a. 
Ewing    V.    Higby,    67   Ohio,    343, 

§  1160. 
Exch.  &  Banking  Co.  v.  Boyce,  3 

Rob.  (La.)  307,  §905. 
Eyre  v.  McDonald,  9  H.   L.  Cas. 
619,  §§  240,  434. 


Fabyan  v.   Russell,   38  N.   H.   84, 

§  1410. 
Fagg   V.    aements,    16    Cal.    389, 

§  1161. 
Fair  v.  Stevenot,  29  Cal.  486,  §§  96, 

274. 
Faircloth  v.   Jordan,    18  Ga.   350, 

§214. 
Falconer  v.  Montgomery,  4  Dall. 

432,  §  1138. 
Fall  River  Bank  v.  Sturtevant,  12 

Cush.  372,  §  683&. 
Fallas  V.  Pierce,  30  Wis.  443,  §§  203, 

231a. 
Fall's  National  Bank  v.  Tovsmsley, 

102  Mass.  177,  §  910. 
Fancher  v.  De  Montegre,  1  Head, 

40,  §  1412. 
Fant  V.  Miller,  17  Gratt.  187,  §  1237. 
Fanton  v.  Fairfield  Co.  Bank,  23 

Conn.  485,  §  432. 
Farmer  v.   Stewart,    2  N.   H.   97, 

§1141. 
Farmers'  Bank  v.  Bank  of  Pa.  7 
Watts  &  S.  335,  §  136. 
V.  Duvall,  7  Gill  &  J.  78,  §  809. 
V.  Vail,  21  N.  Y.  485,  §  819. 


XXXVl 


TABLE   OF   CASES   CITED. 


Farmers'    Bank    i'.    Vanmeter,    4 
Rand.  558,  §  1004. 
V.  Waples,  4  HaiT.  (Del.)  429, 
i^  939. 
Farmors'   Bank  of  Va.  v.  Gunnel. 

26  Gratt.  1:31,  t^  985. 
Fannt'i-s',  etc.  Biuik  v.  Noxon,  45 

N.  Y.  7G2.  S  94b. 
Farmers'  &  Citizens'  Bank  v.  Payne, 

25  Conn.  444,  i?^  G83,  G83a. 
Farmers'    &    Mechanics'  Bank    v. 
Champlain  Tr.  Co.  23  Vt. 
186,  t^,^  552,  553. 
V.  Ciiamplain  Tr.  Co.  16  Vt.  53, 

§§  575,  576. 
V.     Kircheval,    2    Mich.     504, 
§§  402,  418. 
Farmers'  &    Merchants'    Bank    v. 

Lonergan,  21  Mo.  46,  §  1257. 
Farmers'  Loan,  etc.  Co.  v.  Maltby,  8 

Paige,  361,  §§  205,  276. 
Farmers"  National  Bank  v.  Fletcher, 

44  la.  252,  §  348. 
Farnhani  r.    Campbell,    10  Paige, 
598,  §§  342«,  353. 
V.  Railroad,  55  Pa.  St.  53,  §  553. 
Farnsworth  r.  Cliilds,  4  Mass.  637, 

§§8,  231,  278. 
Farnum  v.    Towle,    12    Mass.   92, 

i^  991. 
Farquarson  v.  Eichelberger,  15  Md. 

63,  g  115. 
Farrar  v.  Bates,  55  Tex.  193,  §  1414. 
V.  Eastman,  10  Me.  191,  §  1112. 
Farrell  Foundry  v.  Dart,  26  Conn. 
376,  §  683. 
V.  Jones,  63  Cal.  194,  §  1202. 
Fan-ington  r.  Woodward,  82  Pa. 

St.  259,  §S  672,  674. 
Farrow  v.  Rees,  4  Beav.  18,  §  30. 
Fassin  v.  Hubbai-d,  55   N.  Y.  471, 

§  743. 
Faulk  V.  Faulk,  23  Tex.  635,  §  1404. 
Faull  V.  Tiusman,  36  Pa.  St.   108, 

§  431. 
Fauntleroy  v.  Hannibal.  1  Dill,  118, 

§  1404. 
Faust  V.  Smith,  23  N.  Y,  252,  §  279. 
Fay  V.  Jones,  18  Barb.  340,  §  432. 
Fegenbush  v.  Lang,  28  Pa.  St.  193, 

S  426. 
Feilden  ^.  Slater,  L.  R.  7  Eq.  523, 

^  286. 
Feise  v.  Wray,  3  East,  93,  §  477. 
Feltham  v.  Clarke,  1  De  G.  &  Sm. 

307,  §  433. 
Felton  V.  Pitman,  14  Ga.  530,  §  207. 
Fenner  ?'.  Buffalo  &  State  Line  R. 
Co.  44  N.  Y.  505,  §§  573,  576. 


Fenno  v.  Sayi-e,  3  Ala.  458,  §§  205, 

210. 
Fenwick  v.  Macv,  2  B.  Men.  469, 

g  362. 
Ferdinand   v.    State,   39  Ala.   706, 

§  1411. 
Ferrars    v.   Cheny,   3    Vern,   383, 

J?i^  46,  51. 
Ferr'ea  v.  Chabot,  63  Cal.  564,  §  374. 
Fen-ier  v.  Buzick,  6  la.  258,  §§  347, 

357. 
Fetters  v.  Muncie  National  Bank, 

34  Ind.  251,  s^i;  94o,  94b. 
Feurt  V.  Rowell,  62  Mo.  524,  §  224. 
Field  V.  Chicago,  etc.  R,  Co.  71  111, 

458.  §^  554,  555. 
Fitield  v.  Elmer,  25  Mich.  48,  §  72. 
Fillebrowu  r.  Railroad,  55  Me.  462, 

ti  553. 
Final  v.  Backus,  18  Mich.  218,  §  428. 
Finch  V.   Ne«ham,   3  Vern.    216, 

V.  Pinckard,  5  111.  69,  §  1119. 
V.  Shaw,  19  Beav.  500,  §§  56, 
674. 
First  National  Bank  v.  Christopher, 
40  N.  J.  L.  435,  g  683a. 
V.  Priest,  50  111.  321.  g  1265. 
V.  Ryerson.  23  la.  508,  g  713. 
V.  Wood.  51  Vt.  571,  g  829. 
First  National  Bank  of  Milford  v. 
Town  of  ililford,   36  Conn.  93, 
gg  672,  675,  683. 
Firth  V.  Thrush,  15  Eng.  C.  L.  242; 

8  B.  &  C.  387,  g§  817,  990. 
Fish  V.  Chapman,  2  Ga.  349,  g  552. 
V.  Jackman,  19  Me.  467,  §881. 
Fisher  v.   Fredericks,  33  Mo.  612, 
i;,^  1352,  1364. 
V.  Knox,  13  Pa.  St.  622,  §  440. 
r.  Leland,  4  Cush.  456,  §  93. 
V.  Price,  37  Ala.  407,  §  936. 
V.  Sargent,  10  Cush.  250,  §4807?.. 
V.  Lunnard,   25   La.  An.    179, 
§;^  147,  149. 
Fisk  V.  Newton,  1  Den.  45,  §  571. 

V.  Potter,  2  Keyes,  64,  §§  11,  31. 
Fitch  V.  Pawling,  2  H.  Black.  393, 

§  480)i. 
Fitchburg  Bank  v.  Perley,  2  Allen, 

433,  5?  798. 
Fitts     V.    Wliitney,    32    Vt.     589, 

§§  1300,  1341,  1342. 
Fitzhugh  V.  Barnard,  12  Mich.  105, 

§307. 
Flagg  V.  Mann.  2  Sumn.  486,  §§  26, 

274,  279,  282,  284,  684. 
Flavey  v.  Northern  Transp.  Co.  15 
Wis.  129,  §  548. 


TABLE    OF    CASES    CITED. 


xxxvn 


Fleming  v.  Beck,  48  Pa.  St.  309, 
§  1244. 
V.    Burgin,    2    Ired.    Eq.  584, 
§§  244,  260. 
Flickey    v.    Loney,    4    Baxt.   169, 

§436. 
Flight  V.  Barton,  3  Mylne   &  K. 

283,  §§  30,  321. 
Flint  V.  Sawyer,  30  Me.  226,  §  1121. 
Florence  v.    Paschal,   50  Ala.   28, 

§  1367. 
Floyd  V.  Ricks,  14  Ark.  286,  §  1415. 
Fl^/nt  V.  Arnold,  2  Mete.  619,  §§  96, 

203. 
Foard    v.    Womack,    2  Ala.    368, 

§  1003. 
Fogarty  v.  Sawyer,  23  Cal.  570,  §  96. 
V.  Sparks,  22  Cal.  142,  §§  343, 
364. 
Fogg  i\    Tenn.    National   Bank,   9 

Heisk.  479,  8§  672.  683,  689. 
Poland  V.   BoVd,   23  Pa.    St.   476, 

§  1022. 
Follain  v.  Lefevre,  3  Rob.  (La.)  13, 

§  1413. 
Folsom  V.  Merch.  etc.  Ins.  Co.  38 

Me.  414.  §  480??.. 
Foot  V.   Stevens,    17  Wend.    483, 

§  1085. 
Forbes  v.  Marsh,  15  Conn.  384,  §  72. 
Ford  V.  Dallom,  3  Cold.  67,  §  957. 
v.  Stuart,  19  Jolms.  342,  §  431. 
V.  White,  16  Beav.  120,  §§  104, 
231. 
Forest  v.   Jackson,  56  N.  H.  357, 

§  278. 
Foster  v.  Barney,  3  Vt.  60,  §  394. 
V.  Blackstone,  1  My.  &  K.  297, 

§58. 
V.   Fi-ampton,   6  B.  &  C.  107, 

§§  462,  464. 
V.  McDonald,  5  Ala.  376,  §  843. 
V.  Mix,  20  Conn.  395.  §  436. 
V.  Newbrough,  58  N.  Y.  481, 

§§  1257,  1258. 
V.   Pointer,  9  Carr.  &  P.  718, 

§  1289. 
V.  Smith,  2  Cold.  474,  §  1221. 
V.   Wade,  4    Mete.   (Ky.)  252, 

§  1196. 
V.  White,  9  Port.  221,  §  434. 
Foster's  Appeal,  3  Pa.  St.  79,  §  96. 
Fourth  National  Bank  v.  Heuschen, 

52  Mo.  207,  §§  751,  752. 
Fowler  v.  Brantly,  14  Pet.  318,  §  94. 

V.  Byrd,  Hemst.  213,  §  348. 
Fox  V.  Commonwealth,  81  Pa.  St. 
511,  §  1412. 
V.  Reeder,  28  Ohio  St.  181,  §  357. 


Foye  V.   Leighton,   24    N.   H.   29, 

§  1280. 
Frail  v.  Ellis,  16  Beav.  350,  §  19. 
Fralev's  Appeal,    76    Pa.    St.    42, 

§440. 
France    v.    Lucy,  Ry.   &  M.    341, 

§  1283. 
Fi-ancis  v.   Norris,    2    Miles,    150, 

§  1115. 
Frankford,  etc,  Co.  v.  Philadelphia, 
etc.  R.  Co.  54  Pa.  St.  345,  §  480/c. 
Franklin  v.  Brownlow,  14  Ves.  550, 
§  497. 
V.  Cannon,  1  Root  (Conn.),  500, 
§§  150,  155. 
Franz  v.  Orton, 
Fraschieris  v.   Henriques,  6  Abb. 

(N.  S.),  251,  §  477. 
Frazier  v.  Steenrod,  7  la.  339,  §1088. 
Freeborn  v.    Glazier,   10  Cal.  337, 

§  1192. 
Freeman  r.  Thompson,  53  Mo.  183, 

§  1366. 
Freeman's  Bank  v.  Perkins,  18  Me. 

292,  §  714. 
Freere  v.  Hesse,  4  De  G.  M.  &  G. 

495,  §  240. 
Freidley  v.  Hamilton,  17  S.  &  R. 

70,  §  187. 
French  v.   Bank   of    Columbia,   4 
Cranch,  141,  §  1004. 
V.  Lancaster,  2  Dak.  346,  §  1410. 
V.    Loyal    Co.    5    Leigh,    627, 
§§  316,  368. 
Fi-ey  V.  Clifford,  44  Cal.  335,  §  96. 
Frick  V.  White,  57  N.  Y.  103,  §  431. 
Fi-ost   V.    Beekman,    1   Johns.   Ch. 

288,  §§  158,  307. 
Fry  V.  Sheliee,  55  Ga.  208,  §  689. 
Frye  v.  Partridge,  82  111.  267,  §  307. 
Fulcher  v.  Royal,  55  Ga.  68,  §  268. 
Fuller    V.    Bennett,    2    Hare,   394, 
§§  29,  263.  672,  689,  690. 
V.  Hooper,  3  Gray,  334,  §§  733, 

1021. 

V.  McDonald,  8  Me.  213,  §  939. 

V.  Scrivner,  76  N.  Y.  190,  §  374. 

V.  Wilson,  3  Ad.   &  El.  (N.  S.) 

629,  §  654. 

Fullerton  v.  Bank  of  United  States, 

1  Pet.  604,  §  805. 
Fulton  V.  McCracken,  18  Md.  528, 

§§  697,  715. 
Fulton  Bank  v.  Benedict,  1  Hall, 
480,  §§  676,  685. 
V.  N.  Y.  &  S.  Canal  Co.  4  Paige, 
127,  §§  674,  681,  683. 
Furber  v.  Caverly,   42  N.    H.    74, 
§937. 


XXXVlll 


TABLE    OF    CASES    CITED. 


G. 

Gaff  V.  Sims,  45  Iml.  262,  §  416. 
Gaffe  V.  Lewis,  68  111.  604,  t,  418. 
Gaines  v.  Union  Tr,  Co.   23  Ohio 

St.  418,  gi5  .'>.'55,  nST. 
Gale  V.  Walsh,  5  T.  R.  239,  8  1001. 
Galesburg  v.   Higley,  61  111.   287, 

s?  480cr. 
Galland  v.  Jackman,   26  Cal.  79, 

^246. 
Gall  way  v.  Mathew,  1  Camp.  403; 

10  East,  264,  i<§  .'504,  524. 
Galpin  v.  Abbott,  G  Mich,  17,  §§  119, 
124,  137. 
V.  Page,  1  Sawyer,  309,  §  1085. 
Galwav  v.  Malchow,  7  Neb.  289, 

§  96." 
Games  v.  Stiles,  14  Pet.  322,  §  348. 
Gammon   v.  Hodges,  73    111.   140, 

§152. 
Gard    v.    Stevens,   12    Mich.    292, 

§402. 
Gardner  v.   Lacklin,  4    My.  &  C. 

129,  §  435. 
Garnett  v.  Yoe,  17  Ala.  74,  §  1221. 
Garrard,  Ex  parte,  L.  R.  5  Ch.  D. 

61,  §  433. 
Gai-rett  v.   Puckett,   15    Ind.  485, 
t;  313. 
V.  St.  Louis,  25  Mo.  505,  §  1123. 
Garth  v.  Ward,  2  Atk.  174,  §§  338, 

345. 
Gai-\^er  v.   Downies,    33  Cal.    176, 

§  990. 
Garvey  v.   Fowler,   4  Sandf.  665, 

§  1397. 
Garvin  v.  Wells,  8  la.  286,  §  1409. 
Gary  v.  Mav,  16  Ohio,  66,  §  1058. 
Gates  V.   Beecher,   60  N.  Y.   518, 
§837. 
V.  BushneU,  9  Conn.  530,  §  348. 
V.   Johnson    Co.  36    Tex.  141, 
8  1404. 
Gatewood   v.  Hart,    58    Mo.   261, 

§§  127,  133. 
Gawtry  v.   Doane,  48   Barb.    148, 

§957. 
Gavoso    Sav.   Inst.    t'.   Fellows,   6 

Coldw.  467,  §  436. 
Geill  V.  Jeremy,  22  Eng.  C.  L.  249, 

§§  805,  816. 
Genmiell  v.   Rice,    13  Minn.   400, 

§  1047. 
General  Ins.  Co.  v.  U.  S.  Ins.  Co.  10 
Md.    517,   §§   113,    244,   254,  683, 
683a. 
General  Steam,  etc.    Co.  v.  Rolt,  6 
C.  B.  N.  S.  550,  §§  11,  29. 


George  v.  Kent,  7  AUen,  16,  §g  208, 

308. 

V.  Middough,  63  Mo.  549,  g  1140. 

V.  Wood,  9  Allen,  80,  §g  203. 

206. 

Gemon  v.  Bestick,  15  La.  An.  697, 

§  1097. 
GerrLsh  v.  Pike,  36  N.  H.  510,  §  1235. 
Gei-son  v.  Pool,  31  Ai-k.  85,  §  49. 
Gibbon  v.   Coggan,  2  Camp.   188, 
§  956. 
V:  Paynton,  4  Burr.  2298,  §  542. 
Gibbs  V.  Cannon,  9  S.  «fc  R.  198, 
§417. 
V.  Cobb,  7  Rich.  Eq.  54,  §§  30, 
65. 
Gibcrt  V.   Peteler,   38  N.   Y.   165, 

§  307. 
Gibler  v.  Trimble,  14  Oliio  St.  323, 

§g  364,  365. 
Gibson  v.   Choteau,    39  Mo.    536, 
§  219. 
V.  Colt,  7  Johns.  390,  §§  660, 

662. 
V.  Culver,  17  Wend.  305,  §§574, 

576. 
V.  Gibson,  20  Pa.  St.  9,  §  1225. 
V.  Ingo,  6  Har.  112,  §  30. 
V.  Roll.  30  111.  173,  t;§  1074, 1130. 
Gilbert  v.  Dennis,  3  INIet.  495,  §  782. 
V.  Flint,  etc.  R.  Co.  51  Mich. 
488;    47    Am.    Rep.    592, 
§  1417. 
V.  Jess,  31  Wis.  110,  §  12. 
Gilclu-ist  V.   DonneU,  53  Mo.  591, 

§§  843,  846,  915. 
Gill  V.  Cubitt,  3  B.  &  C.  466,  §  82. 
Gillespie  v.  Edmonston,  11  Humph. 
553,  §§  384,  843. 
V.  Reed,  3  McLean,  377,  §  128. 
Gillet  V.  Fairchild,  4  Den.  80,  §  438, 
Gilman  v.   Hamilton,   16  111.  225, 

§§  334,  359. 
Giudrat  v.  Mechanics'  Bank,  7  Ala. 

324,  §§  703,  913. 
Givens     v.     Merchants'    National 

Bank,  85  111.  443,  §  975. 
Glascock  V.  Robai-ds,  14  Mo.  350, 

§  593. 
Glasgow  V.    Pratte,    8     Mo.    336, 

g§  097,  706,  713. 
Glasscock  v.   Bank  of  Missouri,  8 

Mo.  443,  §  706. 
Glazebrook  v.   Ragland,   8  Gratt. 

344,  §  101. 
Gleadell  v.  Thompson,  56  N.  Y.  194, 

§564. 
Gleason  v.    Gleason,   8  Cush.   32, 
§586. 


TABLE   OF    CASES    CITED. 


XXXIX 


Gleason    v.    Walsh,    43    Me.    397, 

§  4S0n. 
Glencoe    v.    People,    78    El.    382, 

§  1363. 
Glenn  v.  Davis,  35  Md.  215,  §  96. 

V.  Glenn,  17  la.  498,  i^  1345. 
Gliddon  v.    Hunt,   24    Pick.    231, 

§§  203,  231a. 
Glidewell  v.  Spaugli,  26  Ind.  319, 

§§  65a,  273. 
Globe,  The,  2  Blatch.  C.  Ct.  427, 

§  1136. 
Goddard  v.    Pratt,   16  Pick.   412, 
§  488.. 
V.  Lyman,  14  Pick.  268,  §  87. 
V.  Sawyer,  9  Allen.  78,  §  272. 
Godfrey    v.    Disbrow,   Walk.    Ch. 
260,  §  96. 
V.  Turnbull,  1  Esp.  371,  §  513. 
Goelet  V.   McManus,  1   Hun,  306, 

§§  203,  231a. 
Gold  V.  Death,  Hobart,  92,  §  693. 
Goldsmith  v.  Sawyer,  46  Cal.  209, 

i<  1408. 
Good  V.  Martm,  95  U.  S.  95,  §  87. 
Goodav  V.  Corhes,  1  Strob.   (S.  C.) 

199,  ■§  1235. 
Goodloe  V.  Bartlett,  5  McLean,  186, 

§  1246. 
Goodman  v.  Cloudman,  43  Me.  577, 
§96. 
V.  Harvey,   4  Ad.    &  El.  870, 

§§  80,  83,  94. 
V.  Norton,  17  Me.  381,  §  805. 
V.  Simonds,     20     How.      343, 
gg  30rt,  80,  85,  372,  673a. 
Goodnovigh   v.    Oshkosh,   24  Wis. 

549 ;  1  Am.  Rep.  202,  §  480g. 
Goodnow  V.  Warren,  122  Mass.  82, 

§767. 
Goodright  v.  Cordwent,  6  T.  R.  219, 

§  648. 
GoodseU  V.  Sullivan,  40  Conn.  83, 

§202. 
Goodtitle  v.  Woodward,  3  B.  &  Aid. 

689,  §§  616,  698,  700. 

Goodwin  v.  McGehee,  15  Ala.  232, 

§348. 

V.  Railroad,  58  Barb.  195,  §  568. 

Gordon  v.  Gordon,  3  Sw.  400,  §  65a. 

V.  Montgomery,    19   Ind.    110, 

§§  933,  1404. 
V.  Sizer,  39    Miss.   805,  §§  15, 
313. 
Gore  V.  Brazier,  3  Mass.  523,  §  480c. 
Gorham  v.  Luckett,  6  B.  Mon.  146, 

§  1187. 
Gossler  v.  Schepeler,  5  Daily  (N. 
Y.),  476,  §§  477,  479. 


Gott    V.   Dinsmore,    111   Mass.  45, 

§553. 
Goudy  V.  Hall,  30  111.  109,  §  1138. 
Goiiger  V.  Jolly,  1  Holt,  317,  §  540. 
Gould  V.  Cayuga  Co.  etc.  Bank,  56 
How^  Pr.  505,  §  683&. 
V.  Chase,  16  Johns.  226,  §  431. 
V.  Day,  94  U.  S.  405,  §  143a. 
V.  Hill,  2  Hill,  623,  §  552. 
Gove  V.  Vining,  7  Mete.  212,  §  940. 
Goveneur  v.  Lynch,  2  Paige,  300, 

§§  6oa,  103,  278. 
Governors  of  Grey  Coat  Hosp.  v. 
Westminster,  etc.  Com'rs,  1  De  G. 
&  J.  531,  §  240. 
Gowan  i:  Jackson,  20  Johns.  175, 

§§  733,  751,  1021. 
Gower  v.  Doheney,  33  la.  36,  §  97. 
Grace  v.  Adams  Ex,  Co.  100  Mass. 

505,  §§  553,  554. 
Grafton,  The  Ship,  Olcott's  R,  48, 

§563. 
Gragg  V.  Richardson,  25  Ga.  566, 

§  480c. 
Graham  i\  Anderson,  42  HI.  514, 
§§  1412,  1414. 
V.  King,   50   Mo.    22;    11   Am. 

Rep.  401.  §  1066. 
V.  Meeks,  1  Or.  325,  §  310. 
V.  Oldis,    1    Post.    &    F.    262, 

•     §  1282. 
V.  Samuel,  1  Dana,  166,  §§112, 

125. 
r.  Wilhams,   21   La.   An,   594, 
§  1405. 
Grand  Bank  v.  Blanchard,  23  Pick. 

305,  §  794. 
Grand  Tower  Mining,  etc.   Co.  v. 

Schermer,  64  111.  l06,  §  1376. 
Grandin  v.  Anderson,  15  Ohio  St. 
286,  §  208. 
V.  Leroy,  2  Paige,  509,  §  94a. 
Granger  v.  Brown,  11  Cusli.   191, 
§  633. 
V.  Clark,  22  Me.  128,  §  1085, 
Granite  Bank  v.  Ayers,  16  Pick. 

392,  §  916, 
Grant  v.  Bissett,  1  Cai.  Cas.  112,  §  97. 
V.  Cole,  8  Ala.  519,  g  074. 
V.  EUicott,  7  Wend."227,  §  94a. 
V.   Lexington  Fire   Ins.    Co.  5 

Ind.  23,  §  480?i, 
V.  Munt,  Coop.  173,  §  65a. 
V.  Spencer,  1  Mont.  136,  §  1026. 
V.  White,  43  Mo.  285,  §§  581, 

594. 
V.  White,  6  Cal.  55,  §  1331. 
Grattan    v.    Wiggins,   23  Cal.    16, 
§374. 


xl 


TABLE    OF   CASES    CITED. 


Graul  V.  Strutzel,  53  la.  71-2,  §  738. 
Graves    r.  Graves,    6    Gray,    391, 
Sg  112.  119,  12-1. 
V.  Less,  11  Exch.  642,  g  480o. 
V.  Merrv,  G  Cow.  701,  §  513. 
V.  Ward.  2  Dnv.  301,  §  9fl. 
Gray  v.  Bank  of  Kentucky,  29  Pa. 
St.  635.  J5  946. 
r.  Bell.  3  Rich.  71.  g  738. 
V.  Hawes.  8  Cal.  562,  §  1137. 
V.  Larriniore,   2  Abb.   (U.   S.) 

542,  i5  1031. 
V.  Nunan,  63  Cal.  220,  §  1201. 
Grav"s  Adm'rs  v.  Cruise,  36  Ala. 

5o9,  §  225. 
Great  Falls  Co.  v.  Worster,  15  N. 

H.  412,  §  297. 
Great  Western  R.  v.  Wheeler,  20 

Mich.  419,  §  689. 
Greaves  r.  Tofield,  L.  R.  14  Ch.  D. 

563,  §  231. 
Grellet  v.  Heilshorn,  4  Nev.  526, 

§96. 
Greely  v.  Hunt.  21  Me.  455,  §  738. 
Green  v.    Carrington,  16  Ohio  St. 
548.  ;^  165. 
V.  Daubv,  12  Vt.  338,  g  4S0g. 
V.  Deakin.  2  Stark.  347,  J;  528. 
V.  Deal.  4  Hun.  703,  §  197. 
V.  Drinker,    7  W.    &    S.    440, 

§§  112.  231. 
V.  Earlv.39M(I.  223,  §  307. 
V.  Railroad,  41  la.  410,  §  454. 
V.  Slavter,    4    Johns.    Ch.   38, 

<<g  10.  341,  3.51. 

V.  Thompson.  33  la.  293,  §  417. 

V.  AVarnick,  64  N.  Y.  220,  §  197. 

V.  White,  7  Blackf .  242,  55  347. 

Green,    etc.     Navigation     Co.     v. 

Marshall.  48  Ind.  596,  §  573. 
Greene  v.   Farley,    20     Ala.    323. 

§§  714,  912. 
Greenfield  v.  Edwards,  2  De  G.  J. 

&S.  582,  §§31,  65a,  307. 
Greenleaf    v.   Edec,   2  Minn.  264, 

§  239, 
Greenlow  v.  Williams,  2  Lea,  533, 

§§  480c,  480d. 
Greenman  v.  Harvey,  53  111.  368, 

§  1377. 
Greenslade  v.  Dare,  20  Beav.  284, 

§§  ",  11. 
Gregory  v.   Haynes,   13  Cal.   591, 

J5  374. 
Grewell  v.  Henderson,  5  Cal.  465, 

§  1069. 
Griffin  v.   Cunningham,  20  Graft. 
31,  §  146. 
V.  Gofif,  12  Johns.  423,  §  975. 


Griffin  v.  Pugh,  44  Mo.  32G,  §  72. 
V.  Wilcox,  21  Ind.  370.  ij  428. 
r.  Sheffield.  38  Miss.  ;'.59,  §  1268. 
Griffing    v.    Gibb,    2    Black.    519, 

4^  1404. 
Griffith  V.  Griffith.  1  Hoff.  Ch.  153. 

ti^  15,  47.  313,  351. 
Grignon's  Lessees  v.  Astor,  2  How. 

319,  §  1085. 
Grim  v.  Curlev.  43  Cal.  250.  §  280. 
Grimes  v.   Fall,  15  Cal.  63,  i?  1257. 
Grimstone  v.  Carter,  3  Paige.  421, 

4;,^  103,  119,  149,  188,  279,  299. 
Grinman    v.   Walker,    9    la.    426, 

§§  786,  830. 
Grinnan  v.  Baton  Rouge  Co.  7  La. 

An.  638,  §  516. 
Griswold    v.    Smith,    10  Vt.    452, 
g§  44,  113. 
V.  Waddington.  16  La.  An.  484; 
15  Johns.  57.  gg  752,  981. 
Grobr.  Cushman,  45111  119,  §  1404. 
Grocers'  Bank  v.  Penfield,  7  Hun, 

279,  t^  946. 

Groff  V.  Ramsey.  19  Minn.  44,  §  278. 

Grosvenor  v.  Atlantic  Fire  Ins.  Co. 

17  N.  Y.  319.  §  445. 

V.  Green.  28  L.  J.  Cii.  173,  §  35. 

r.  Stone.  8  Pick.  79,  §§  730,  731. 

Groton    v.    Dallhemi,   6    Me.   476, 

!^  1018. 
Grout  V.  Hill,  4  Grav,  361,  §  466. 
Guilford  v.  Smith,  30  Vt.  49,  §  464. 
Guion  V.  Knapp,  6  Paige,  35,  gjj  203. 

308.  331. 
Gunn  V.  Sinclair,  52  Mo.  327,  8  611. 
Gunson  v.  Metz,  1  B.  &  C.  193,  §  962. 
Gwinn  v.  Turner,  18  la.  1,  §  167. 

H 

Haas  V.  Weinhagen,  30  Wis.  326, 

§  1210. 
Hackett  v.  Martin,  8  Me.  77,  §§  431, 

438,  442. 
Hackwith  v.  Damron,  1  Monr.  235, 

§g  15,  277,  305,  308,  310. 
Hadden  v.  Spader,  20  Johns.  554, 

§§  342a,  353. 
Haescig  v.  Brown,  34  Mich.  503, 

s^93. 
Hagtlirop  V.  Hook,  1  Gill  &  J.  270, 

§310. 
Halm  V.  Kelly,  34  Cal.  391,  §  1085. 
Hailes  v.  State,  9  Tex.  App.  170, 

§  1408. 
Halbert  v.  Skyles,  1  A.  K.  Marsh, 

368,  §§  1408,  1409. 


TABLE    OF    CASES    CITED. 


xli 


Haley  v.  WUliams,  8  Sm.  &  M.  487, 

§  1184. 

HaU  V.  Brown,  58  N.  H.  93.  §  1404. 

V.  Chenev,  36  N.  H.  26,  §  558. 

V.  Hale,  8  Conn.  336,  §§  90,  94. 

V.  Hickman,   2  Del.    Ch.  318, 

§431. 
V.  McDuff,  24  Me.  311.  §  20S. 
V.  Pillow,  31  Ai-k.  32,  §§  77, 

224. 
V.  Eobinson,  2  Comst.  (N.  Y.) 

293,  §  428. 
V.  Smith,  14  Ves.  426,  §  279. 
V.  Wadsworth,  28  Vt.  410,  §  578. 
HaUeck  v.- Moss,  17  Cal.  339,  g  1129. 
Halley  v.  Oldham,  5  B.  Mon.  233, 

§§  232,  266. 
Hallowell  v.  Cuny,  41  Pa.  St.  322, 

§819. 
Hall's  Heirs  v.  Hall,  2  Eoot,  383, 

§113. 
Halsey  v.  Carter,  6  Rob.  (N.  Y.)  535, 

§  1199. 
Halstead  v.  Bank  of  Kentucky,  4  J. 

J.  Marsh.  554,  §g  113.  203. 
Ham  V.  Ham,  39  Me.  363.  §  1410. 
Hamilton  v.  Boggess,  63  Mo.  233, 
§211. 
V.  Fowlkes,  16  Ark.  340,  §  96. 
V.  Lycoming  Mat.  Ins.  Co.  5  Pa. 

St.  339,  §  383. 
V.  Marks,  52  Mo.  78 ;  63  Mo.  167, 

§§  80,  87,  88. 
V.  Nutt,  34  Conn.  501,  §  310. 
V.  Eoyse,  2  Sch.   &  Lef.   315, 
§§  7,  313,  314. 
Hammond  v.  Gilmore,  14  Conn.  479, 
§§418,  419. 
V.    Hopping,    13    Wend.    505, 
§  1266. 
Hanauer  v.  Doane,   12  Wall.    842, 

§  92a. 
Hanbury  v.  Litchfield,  2  My.  &  K. 

629,  §§  281,  282,  284. 
Hancock  v.  Beverly,  6  B.  Mon.  531, 

§219. 
Hankinson  v.  Barbour,  29  111.  80, 

§§11,  246. 
Hanly  v.  Morse,  32  Me.  287,  §§  44, 

65a,  277. 
Hanrick  v.  Thompson,  9  Ala,  409, 

§  292. 
Hansen  v.  Fish,  27  Wis.  535,  §  1188. 
Harang  v.  Plattsmier,  21  La.  An. 

426,  §  97. 
Harbeck  v.  Toledo,  11  Ohio  St.  219, 

§  1127. 
Hardaway  v.  Semmes,  24  Ga.  305, 
§325. 


Harden  v.   Boyce,   59    Barb.   435, 

§980. 
Hardin    v.  Harrington,    11    Bush, 
367,  §§  60,  61. 
V.  Kretsinger,    17  Johns.    393, 
§  1266. 
Harding  v.  Stafford,  Say.  Rep.  133. 

§  1199. 
Hardy  v.  Reeves,  5  Ves.  426,  §  65a. 
V.  Summers,  10  Gill  &  J.   31(5, 
§§  44,  273. 
Hargen  v.  Bemis,  1  Thomp.  &  C. 

460,  §  931. 
Hargreaves  v.  Rothwell,   1  Keen. 

154,  S  689. 
Harker  v.  Anderson,  21  Wend.  372, 

§  1387. 
Harlan  v.  Seaton,  18  B.  Mon.  312. 

§§  219,  221. 
Harmon    v.    State,    18    Ind.    450, 

t-  1416. 
Harnden  v.  New  Haven,  etc.  Co. 

27  Conn.  158,  §  480c^. 
Harper  v.  Reno,  1  Freem.  Ch.  323, 

§125. 
Harral  v.  Gray,  10  Neb.  189,  §  98. 
Harrington  v.  Allen,  48  Miss.  493, 
§  97. 
V.  Fortner,  58  Mo.  468,  S  140. 
V.  Loomis,  10  Minn.  366,  i?  1043. 
V.  Slade,  22  Barb.  161,  §  341. 
Harris    v.    Arnold,    1    R.    I.    125, 
§§  206,  273.  274. 
V.  Barwell,  65  N.  C.  534,  §  431, 
V.  Bell,  10  S.  &  R.  39,  §  231. 
V.  Brown,  63  Me.  51,  §  1234. 
V.  Carter,  3  Stew.   233,    §§  44, 

341. 
V.  Ferrand,  Hardres,  36,  §  1387. 
V.  Fly,  7  Paige,  421,  §  324. 
V.  Fi-ink,    2  Lans.  (N.   Y.)  35, 

§  593. 
V.  Grodner,  42  Mo.  159,  §  1057. 
V.  Memphis  Bank,  4  Humph. 

519,  g  923. 
V.  Pratt,  17  N.  Y.  249,  §§  464. 

466. 
V.  Robinson,  4  How.  336,  §§821, 

921. 
V.  Tumbridge,   8    Abb.   N.   C. 

291,  §  480o. 
V.  Whitcomb,     4    Gray,    433, 
§  1257. 
Harrisburg  Bank  v,  Meyer,  6  S.  & 

R.  537,  §  92a. 
Harrison  v.  Bailey,   99  Mass.  620, 
§  1397. 
V.  Cachelin,  23  Mo.  117,  §§  191, 
308. 


xlii 


TABLE    OF   CASES    CITED. 


Harrison  v.  Farmers'  Bank  of  Vir- 
ginia, 6  W.  Va.  1,  i<  146. 

V.  London,  Brighton  &  S.  Coast 
R.  Co.  2  B.  &  S.  122,  ^  542. 

17.  Ruscoe,    15    M.   &  W.    231, 

V.  Trader,  29  Ark.  85,  §  1000. 
Harrold  v.  Simons.  9  Mo.  326,  §  103. 
Harrop  i\    Landers,    etc.    Co.     45 

Conn.  501,  JJ  436. 
llarryman  v.  Collins,  18  Beav.  19, 

5i§  13,  34. 
Hart    V.    Albany,     3    Paige,    213, 
§  480h. 
V.  Alexander,  2  M.  &  W.  484, 

§  485. 
V.  Carpenter,  24  Conn.  427,  §  72. 
V.  Chalker,  14  Conn.  77,  gg  149, 

178. 

V.  Eastman.  7  Minn.  74.  §  738. 

V.  Farmers'  &  Mechanics'  Bank, 

33  Vt.    252,   §§  191,   673a, 

674,  085,  687,  689. 

V.  Gray,  3  Sumn.  389,  §§  1341, 

1342. 
V.  Robinet,  5  Mo.  11,  §  1267. 
Hartford  Bank  v.  Hart,  3  Day,  491, 
§  683. 
V.    Steadman,     3    Conn.    489, 
g§  795,  818. 
Hartley  v.  Case,  1  Carr.  &  P.  555, 

§§  780,  784. 
Hai-tniyer  v.   Gates,    1    Root,    61, 

§155. 
Harvey  v.  Fisk,  9  Cal.  93,  §  1086. 
V.  Mitchell,  2  Mood.  &  R.  366, 
§  1274. 
Harwood  v.  Jarvis,  5  Sneed,  375, 
§  1016. 
V.  Smethurst,  30  N.  J.  L.  230, 
§  1172. 
Haskell  v.    Bartlett,   34  Cal.   281, 
§  1125. 
V.    Boardman,     8    Allen,     38, 

§g  946,  950. 
V.  Jones,  86  Pa.  St.  173,  §  94a. 
V.  State,  31  Ark.  91,  §  49. 
Hassett  v.  Rust,  64  Mo.  325,  §§1155, 

1297. 
Hadtings  v.  Cutler,  24  N.  H.  481, 
§§  4,  7,  12,  073a. 
V.  Pepper,  11  Pick.  41,  §  480a. 
Hatch  V.  Bigelow,  39  lU.  546,  §§  280, 
293. 
V.  Dennis,  10  Me.  244,  §  431. 
V.  Searles,  24  L.  J.  Ch.  22,  §  80. 
V.  Taylor,  10  N.  H.  547,  g  660. 
Haughwout  V.  Mui-phy,  21  N.   J. 
Eq.  118,  §  348. 


Havens  r.   Adams,   8  Allen,   363, 
§  339. 
V.  Bliss,  26  N.  J.  Eq.  363,  §273. 
V.  Dale,  18  Cal.  359,  §  288. 
V.    Sherman,     42    Barb.     636, 
§§  1075,  1130. 
Hawkes  v.   Phillips,  7  Gray,  284, 

§87. 
Hawks    V.    Salter,    4    Bing.    715, 

4$^;  805,  813,  822. 
Hawley  v.   Cramer,  4   Cow.   717, 

§§  30,  61. 
Hawthorn  v.  Hoboken,  32  N.  J.  L. 

172,  §  1404. 
Hayden   v.   Boyce,   59  Barb.   425, 
§983. 
V.  Bucklin,  9  Paige,  512,  §§  350, 

357. 

V.  Dunlap,  3  Bibb,  216,  §  1087. 

Haynes  v.  Birks,  3  Bos.  &  P.  599, 

§§  781,  817. 

V.  Brown,  36  N.  H.  568,  §  676. 

V.   Calderwood,    23    Cal.    409, 

§374. 
V.  Meeks,  10  Cal.  110,  §  1129. 
V.  Seachrost,  13  la.  455,  §  97. 
Hays  V.  Davis.  18  N.  H.  600,  g  143a. 
r.  Lewis,  21  Wis.  663,  §  1062. 
V.  McGuire.  8  Yerg.  92,  §  96. 
V.  Morrille,  14  Pa.  St.  48,  §  461. 
V.  Riddle,  1  Sandf.  246.  §  1268. 
Hayton  v.  Hope,  3  Mo.   58,  §  1211. 
Haywood  v.  Nat.  Ins.  Co.  52  Mo. 
181,  §§  674,  688. 
V.  Russell,  44  Mo.  252,  §§  1058, 
1078. 
Hazard   v.   White,    26    Ark.    155, 

§956. 
Hazleton  Coal  Co.  v.  Ryerson,  20 

N.  J.  L.  129,  §  883. 
Hazlett  V.  Poultuey,  1  Nott  &,M. 

466,  §  714. 
Head  v.  Fordyce,  17  Cal.  149,  §  374. 
Heaston  v.  Cimi.  etc.  R.  Co.  16  Ind. 

275,  §  1404. 
Heath,  Ex  liarte,  2  Ves.  &  B.  240, 

§^  997,  999. 
Heatly  v.   Finster,   2    Jolms.    Ch. 

158,  §  341. 

Heaton  v.  Findlay,  12  Pa.  St.  304, 
§  1227. 
V.  Hulbert,  4  Bl.  489,  §§  420, 
422. 
Hedges  v.  Raili-oad,  49  N,  Y.  223, 

§  5^7. 
Heermans  v.  Ellsworth,  64  N.  Y. 

159,  §  8. 

Heistner  v.   Fortner,   3  Binn.   40, 
§§  ua,  125. 


TABLE    OF    CASES    CITED. 


xliii 


Helgear  v.  Hawke,  5  Esp.  72,  §§  653, 

663. 
Helms  V.  Chadbourne,  45  Wis.  60, 

§?;  10,  65a. 
Hempstead    v.    Darbv,   2  Mo.   25, 

§  1211. 
Henderhen  v.  Cook.  66  Barb.  21, 

§i$  668,  691. 
Hendley  v.    Baccus,  32    Tex.    328, 

§  1372. 
Hendrick   v.    Davis,    27    Ga.    167, 

§  1086. 
Hendrickson's  Appeal,  24  Pa.  St. 

363,  §  188. 
Henlj^  V.  Gore,  4  Dana,   133,   §  376. 
Heunen  v.  New   Orleans   &  C.  R. 

Co.  20  La.  Ann.  544,  §  1203. 
Hennessey  v.  Stewart,  31  Vt.  486, 

§  1257. 
Henning  v.  Fisher.  6  W.   Va.  238, 

§  146. 
Henning's  Case,  2  Croke,  432.  §  1387. 
Henry   v.    Morgan,    3   Binn.    497, 
g§  693,  694. 
V.  Eaiman,  25  Pa.  St.  354,  §§  60, 
265. 
Hensley    v.    Tarpey,    7    Cal.    288, 

§  1417. 
Henthorn  v.   Doe,    1   Blackf.    157, 

§  1405. 
Herbage  v.  McEntee,  40  Mich.  337, 

§87. 
Herd  man  v.  Short,  18  111.  59,  §1074. 
Hermon  v.  Denning,  44  Conn.  124. 

§  176. 
Herndon  v.   Kimball,    7    Ga.  432, 

§112. 
Herrick  v.  Atvvood,   3  De  G.  &  J, 

31,  §  13. 
Herrin    v.    Libbey,    36    Me.     350, 

§§  1243,  1321. 
Herrington  v.  Herrington,  27  Mo. 
560,  §  357. 
V.  McCuUum,  73  III.  476,  §  357. 
Herschfeld  v.  Dexel,  12  Ga.    582, 

§  1405. 
Hersey  v.  Turbett,  37  Pa.  St.  418. 

§§  339,  342a. 
Hervey   v.    Smith,    23    Beav.    299, 

§§  16,  35,  65o.  303. 
Hesters  v.    Petrovic,    1   Rob.  (La.) 

119,  §§  745,  747. 
Hetherington  v.  Clark,  30  Pa.  St. 

393,  §§  305,  323. 
Hetzel  V.  Barber,  69  N.  Y.  1,  §  214. 
Hevener   v.   Heist,   9    Pliila.    274, 

§  1358. 
Hewes  v.   Wiswall,  8  Greenl.    94, 

§§  374,  288,  391,  294. 


Hewitt  V.  Loosemore,  9  Hai-e,  449, 
§§  47,  690. 
V.  Wetherby,  57  Mo.  376,  §  1347. 
Hibernian   Bank  v.    Everman,    53 

Miss.  500,  §  372. 
Hickerson  v.  Raignell,  3  Heisk.  329, 

§94a. 

Hickman  v.  Dale,  7  Yerg.  149,  §343. 

Hicks  V.  Hankin,  4  Esp.  114.  §656. 

V.  Skinner,  71  N.  C.  539,  §  224. 

Hickson  v.  Callis,  1  Jones  &  L.  94, 

§  241. 
Hidden  v.  Bishop,  5  R.  I.  29,  §  94a. 
Hiern  v.  Mill,    13   Ves.  114.  §§  47, 

50,  56. 
Higgins  V.  Shaw,  3  Dr.  &  War.  356, 

§  344. 
liightower  v.  Ivy,  3  Port.  308,  §  939. 
Hildreth  v.  Lowell,   11  Gray,  345, 

§  1343. 
Hill  V.  Bacon,  43  111.  477,  §  1416. 
V.  Beatty,  61  Cal.  393,  §  1203. 
V.  Calvin.  4  How.  (Miss.)  331, 

§  390. 
V.  Faison,  37  Tex.  438,  §  1069. 
V.  Grant,  33  Tex.  133,  §  1368. 
V.  Humphreys,  5  W.  &  S.  133, 

§  574. 
V.  Ivi-oft,  29  Pa.  St.  186,  §  372. 
V.  Manchester,  etc.  Co.  5  B.  & 
Ad.  874;  2  Nev.  &  M.  &73, 
§  676. 
V.  Martin,  12  Mart.  177,  §  945. 
V.  Mason,  38  Me.  461,  §  1121. 
V.  McCarter,  27  N.  J.  Eq.  41, 

§  203. 
V.  Meeker,  24  Conn,  211,  §  319. 
V.  Norris,   3   Stew.   &   P.    114, 

§  1013. 
V.  Norveil,     3    McLean,     583, 

§  907. 
V.  Oliphant,    41    Pa.    St.    364, 

§  343. 
V.  Planters'   Bank,    3  Humph. 

670,  §  717. 
V.  Simpson,  7  Ves.  153,  §§  11, 

333. 
V.  Vavrell,  3  Me.  233,  §  909. 
Himes  v.  Keighblingher,  14  111.  469, 

§  143a. 
Himmelman  v.   Hoadley,   44  Cal. 

213,  §  1412. 
Hinckley  v.  Beckwith,  23  Wis.  328, 

§  1411. 
Hhide  i\  Vattier,  1  McLean,  110;  7 

Pet.  252,  §§  8,  30,  65. 
Hinds  V.  Allen,  34  Conn.  195,  §480c. 
Hine  ('.    Allely,   4  B.    &  Ad.  624, 
§  781. 


xliv 


TABLE   OF   CASES    CITED. 


Hlne  V.  Dodd,  2  Atk.  275,  g§  11,  245. 

V.  Robbins.  8  Conn.  U2,  §  113. 

Hinman  t".  Hinman,  4  Coun.  575, 

§113. 
Hiorns    v.   Holton,    16  Beav.   259, 

§  690. 
Hi]ies    V.   Cocliran,    13,  Ind.    175, 

J^  1236. 
Hirscli  r.  Quaker  Citv,  2  Disney, 

144,  g  570. 
Hiscock    V.    Phelps,   2    Lans.    106, 

t;  1218. 

Hix  V.  Coi-nelison,  7  Cold.   (Tenn.) 

299.  §  1194. 
Hizor  V.  State,  12  Ind.  330,  §  1412. 
Hoadley  v.  N.  T.  Co.  115  Mass.  304, 

§  553. 
Hobart  v.  Hilliard,    11   Pick.  143, 

§  1390. 
Hobbs    V.    Clements,    32    Me.    67, 

§  111'. 
V.  Memphis  Ins.  Co.  1  Sneed, 

444,  §  444. 
V.  Spiegleberg,  5  W.  Coast  Rep. 
327,  §  113. 
Hobson  V.  Stevenson,  1  Tenn.  Ch, 

203,  i^  436. 
Hodges  V.  Brett,  4  G.  Green,  345, 

§  1365. 
Hodgkins  v.  Montgomery  Co.  Ins. 

Cd:  34  Barb.  2l;i,  J^  689. 
Hodgson  i\  Butts,  3   Cranch,  140, 
^  125. 
V.    Dean,    2  Sim.    &   Stu.  227. 
§g  104,  106. 
Hoffman  r.  State,  12  Tex.  App.  406, 
§  1410. 
V.    Strobecker,    7    Watts,    90, 
§226. 
Hoffmann    v.   Smith,   1  Cai.    160, 

g  1003. 
Hogan  V.  Black,  4  Pac.  Rep.  943, 

§  431. 
Hogden  v.  Guttery,  58  111.  431,  §  97. 
Holbrook  v.  Dickenson,  56  111.  497, 
§97. 
V.  Vose.  6  Bosw.  76 ;  4  L.  Reg. 
(N.  S.)602,  §^464,  472. 
Holbrow  r.  Wilkins,  1  B..  &  C.  10, 

§§  401,  423. 
Holdanev.  Butterworth,  5  Bosw.  1, 

§515. 
Holden  v.  N.  Y.  &  Erie  Bank,  6 
Rep.  692 ;  72  N.   Y.   286,  §§  672, 
674,  683,  687.  689. 
Holland  v.  Turner,  10  Conn.  308, 

§?;  946,  951. 
Hollidavr.  Franklin  Bank,  16  Ohio, 
533,  §"231a. 


Hollister  v.  Nowlen,  19  Wend.  234, 

§  552. 
Holman  v.    Eitei-man,  83    lU.  92, 
§  1161. 
V.  Patterson's   Heirs,  29  Ark. 

357,  §  339. 
V.  Whitney,  19  Ala.  703,  §  943. 
Holme  V.   KanJiper,  5    Binn.    469, 

§  94b. 
Holmes  i\  Furguson,  1  Oreg.  220, 
§310. 
V.   Powell,  8  De  G.  M.  &  G. 

572,  §g  44,  65a,  279,  288. 
V.  Stout,  10  N.  J.  Eq.  492,  §§288, 

290. 

V.  Weed,  24  Barb.  546,  §  480hi. 

Hoist  V.  Pownal.  1  Eap.  240.  §  462. 

Holt  V.   Miors,  9  CaiT.  &  P.  199, 

§  1287. 

V.  Penobscot,  56  Me.  15,  §  4S0sr. 

Home  Ins.  Co.  v.  Green,  19  N.  Y. 

518,  §  837. 
Home  Life  Ins.  Co.  v.  Pierce,  75 

111.  426,  §  6G8. 
Homer  v.    Grosholz,   38  Md.    521, 

§96. 
Honore's  Ex'r  v.   Bakewell,   6  B. 

Mon.  67,  §  330. 
Hood  V.  Fahnestock,  1  Pa.  St.  470 
(8  Watts,  489),  §§  283,  674,  688, 
692. 
Hooker  r.   Hammel,  7  Neb.   234, 

§96. 
Hoopes  r.  Knell,  31  Md.  550,  §  101. 
Hoover  v.  Tibbitts,  13  Wis.  79,  §  466. 

V.  Wise,  91  U.  S.  308,  §  686. 
Hope  V.  Liddell,  21  Beav.  183,  §§  15, 

313,  324. 
H«pes  V.  Alder,  6  East,  16,  §  705. 
Hopgood  V.  Earnest,  3  De  G.  J.  & 

S.  116,  §§47,  65a. 
Hopkins  v.'  Gerrard,  7  B.  Mon.  312, 
§§  246,  299. 
V.  Kansas  Citv,  etc.  R.  Co.  79 

Mo.  98,  §1411. 
V.  Liswell,  12  Slass.  52,  §  956. 
V.  McLaren,  4  Cow.  667,  §  348. 
Hopkirk  v.  Page,  2  Brock.  20,  §§  981, 

1004,  1006. 
Hopley  V.  Dufresne,  15  East,  275, 

§  975. 
Hoppin  V.  Doty,  25  Wis.  573,  §  23. 
Hoppbck  V.  Johnson,  14  Wis.  303, 

8  674. 
Horace  v.  Chicago,  etc.  R.  Co.  38 

Wis.  463,  §  1409. 
Horn  V.  Jones,  28  Cal.  194,  §§  369, 

374. 
Home  V.  Howell,  46  Ga.  9,  §  280. 


TABLE    OF    CASES    CITED. 


xiv 


Horton  v.  Bayne,  52  Mo.  531,  §§  80, 

87. 
Hotchkiss    V.   Hunt,   49    Me.   213, 

§72. 
Hough    V.   Gray,   19    Wend.    202, 

§§  420,  422. 
Houghtaling  v.    Ball,    19   Mo.    84, 

§  1405. 
Houghton     V.     Bartholomew,    10 
Mete.  138,  §  96. 
V.  Ely,  26  Wis.  181,  §  87. 
Housatonic  Bank  v.  Martin,  1  Mete. 

308,  §  683. 
House  V.  Adams,  48  Pa.  St.  261, 

8  QS^ 
Housego  V.  Cowne,  2  M.  &  W.  348, 

g§  831,  832. 
Houseman    v.    Mut.     Build,     etc. 

Ass'n,  81  Pa.  St.  256,  §  688. 
Houston,  etc.  R.  Co.  v.  Hodde,  42 

Tex.  467,  ^§  571.  573. 
Hovey  v.  Blanchard,  13  N.  H.  145, 

§§  672,  689,  691. 
Howard  v.  Chase,  104  Mass.  249, 
§  313. 
V.  Great  W.  Ins.  Co.  109  Mass. 

384,  §  480)1. 
V.  Ives,  1  Hill,  263,  §§  715,  795, 

818. 
V.  Kennedy,  4  Ala.  592,  §  343. 
Howard  Ins.  Co.  v.  Halsey,  4  Sandf . 
565 ;  8  N.  Y.  271,  §§  17,  43,  203, 
307,  688. 
Howe  V.  Bradley,  19  Me.  31,  §  836. 
V.  Hall,  14  East,  274,  §  1263. 
V.  Nickels,  22  Me.  175,  §  390. 
V.  Stewart,  40  Vt.  145,  ?;  457. 
V.  Thayer,  17  Pick.  91,  §  486. 
Howell  V.  JHowell,  5  W.  Coast  Rep. 
286,  §  1240. 
V.  Huyck,  2  Abb.   App.  Dec. 
423,  §§  1262,  1268. 
Howry  v.  Eppinger,  34  Mich.    29, 

§§  90,  92. 
Hoxie  V.  CaiT,  1  Sumn.  173,  §§  26, 

371. 
Hoy  V.  BramhaU,  19  N.  J.  Eq.  563, 

§g  10,  16. 
Hoyt    V.    Jeffers,    30    Mich.    181, 
§§  480A;.  695. 
V.  McNeil,  13  Minn.  390,  §  1405. 
V.  Sheldon,  3  Bosw.  267,  §  8. 
V.  Thompson,  5  N.  Y.  347,  §  96, 
Hubbard  v.  Matthews,  54  N.  Y.  43, 

§§  748.  751,  753, 
Huddeson  v.  Prizer,   9  Phila.  65, 

§  1358. 
Hudgens  v.  Jackson,  51  Ala,   514, 
§  1096. 


Hudson  V.  Warner,  2  H.  &  G.  415, 

gi^  34,  86. 
Hutf  V.  Hutchinson,  14  How.  586, 

§  1085. 
Huffman  v.   San  Joaquin  Co.  21 

Cal.  426.  §  4S0g. 
Hughes  V.  Bowen,  15  la.  446,  §  956, 
V.  Cannon,  2  Humph.  589,  g  127. 
v.    Dudnam,     8    Jones,     127, 

§§  149,  162. 
V.  Osborn,  42  Ind.  450,  §§  1155, 

1346, 
V.  United  States,  4  Wall,  232, 

§§  44,  273. 
V.  Watt,  26  Ark.  328,  §  1094, 
Hulbert  v.  Pacific  Ins.  Co.  2  Sumn, 

471,  §  670, 
Plulett    V.    Soulard,    26 .  Vt.    295, 

§  480?Ji. 
Hidings  V.  Guthrie,  4  Pa.  St.  123, 

§238. 
Hull  V.  Noble,  40  Me.  459,  §§  10, 

277,  279. 
Hultain  v.  Munigle,  0  Allen,  220, 

§  609. 
Hume  V.  Watt,  5  Kan.  34,  §§  756, 

878. 
Humplu-ey  v.    Burnside,   4  Bush, 

215,  §  1411. 
Humphreys  v.  Newman,  51  Me.  40, 

§208. 
Humphries  v.    Budd,  5   Jur.   630, 
§  1410. 
V.  McCraw,  9  Ark.  91,  §  1230. 
Hundley  v.  Mount,  8  Sm.  &  M.  387, 

§192, 
Hunt  V.  Bailey,  39  Mo.  257.  §  606, 
V.  Crane,  33  Miss,   669,  §  1243, 
V.  Elmes,  2  De  G.  F.  &  J.  578, 

§65a. 
V.  Johnson,  19  N.  Y.  279,  §§  97, 

113. 
V.  Lowell,  1  Allen,  343,  §  1255. 
V.  Maybee,  7  N.  Y.  266,  §  990. 
Hunter  v.  Boucher,    3  Pick.   289, 
§671. 
V.  Hook,  64  Barb.  468,  §  957. 
V.  Hudson,  etc.   Co,  20  Barb, 

493,  §  654, 
V.  Kennedy,  1  Ir.  Ch.  R,   148, 

§104. 
V.  Watson,  12  Cal.  363,  §§  97, 
203. 
Huntington  v.  Charlotte,  15  Vt.  46, 
§  1085. 
V.  Harvey,  4  Conn.  124,  §§  956, 
966. 
Hurlbutt  V.  Buttenop,  27  Cal.  50, 
§374. 


xlvi 


TABLE   OF   CASES   CITED. 


Hiissoy  V.   Freeman,  10  Mass.  84, 

§  965. 
Huston  V.  Peters,  1  Mete.  (Ky.)  558, 

g  575. 
Hutcheson  i'.   Blakeman,   3  Mete. 

(Ky.)  (30,  45  385. 
Hntfhoson  v.  Johnson,  1  Binn.  59, 

55  1321. 
Hiitchm<;s  v.  Nunes,  1  Moore  P.  C. 

N.  S.  243,  §480. 
Hutcbins     i:     Bank    of  Term.    4 
Hunipli.  418,  §  504. 
V.  Hudson,  8  Humph.  426,  §504. 
Hutc-hinson  r.  Harttman,  15  Kan. 

133,  §;;  204.  :316. 
Hutz  V.  Karthouse,  4  Wash.  C.  C. 

1.  §  736. 
Hvatt  r.  Bank  of  Ky.  8  Bush,  193, 

§  822. 
Hvdo  V.  Navigation  Co.  5  T.  R.  389, 

■§  574. 
Hyslop  V.  Hoi)pock,  5  Ben.  447;  6 
Bank.  Reg.    552,   §§  1349, 
1356. 
V.  Jones,  3  McLean,  96,  §  829. 


I. 


Ibbottson  V.  Rhodes,   2  Vern.  554, 

§§  ",  35. 
Iglehart  v.  Crane,  42  111.  261,  §  203. 
Dl.  Cent.  R.    Co.   v.  Aslimead,  58 
111.  487,  §  455. 
V.    Frankenberg,     54    111.     88, 

§  553. 
V.  Hornberger,  77  111.  457,  §  455, 
V.  Johnson,  40  111.  35,  §  1417. 
V.  McClellan,  54  111,  58 ;  42  111. 

355,  §§  455,  4807i;. 
V.    McCulIough,    59    lU.    166, 

§.^  64,  273,  277,  299. 
V.  Morrison,   19  111.  136,  §  553. 
Inee  v.  Everard,  6  T.  R.  545,  §  161. 
Indianapolis,   etc.   R.  Co.   v.  Cald- 
well, 9  Ind.  397,  §  1409. 
V.  Case,  15  Ind.  2,  §  1410. 
V.  Moore,  16  Ind.  4J,  §  1410. 
V.    Paramore,     12    Lid.     426, 

§  1410. 
V.  Stephens,  28  Ind.  429,  §  1410. 
Inglehart  v.  Thousand  Island  Hotel 
Co.  14  N.  Y.  Sup.  Ct.  547,   §  671. 
Inghs  V.  State,  61  Ind.  212,  §  1412. 
Ingrahani  v.  Disborough,  47  N.  Y. 
421,  §  431. 
V.  State,  27  Ala.  17,  §  1412. 
Ingrem  v.  Philliiis,  3  Strobh.  565, 
§231. 


Inloe's  Lessees  v.  Harvey,   11  Md. 

519,  §  ;W9. 
Irby  v.  Vining,  2  McCord,  379,  §485. 
Ii-eland  r.  Kipp,   JO  Johns.   489;  11 

J<jhns.  231,  §§  780,  847. 
Irvin  V.  Smith,  17  Ohio,  226,  SS  225, 

364. 
Irwin  V.  Phillips,  5  Cal.  140,  §  1411. 
Isaacs  V.   Shattuck,    12    Vt.    668, 

§  1090. 
Isbell    V.    Kenyon,    33    Mich.    63, 

§  1092. 
Isham  V.  Bennington  Iron  Co.  19 

Vt.  280,  §§112,  125. 
Isett  V.  Hoge,  2  Watts,  128,  §  421. 
Isley  V.  Jones,  12  Gray,  2U0,  §§  413, 
414,  415. 
V.  Stubbs,  9  Mass.  65,  §  466. 
Ives  V.  Bosley,  35  Md.  262,"§  87. 
Izett  V.   Mountain,    4    East,    371, 

§542. 


Jaccard  v.  Anderson,   37  Mo.    91, 

§  934. 
Jacks  v.  Darrin,  3  E.  D.  Smith,  557, 

§  1009. 
Jackson  v.  Andrews,  7  Wend.  152, 

§341. 
V.  Brvan,  1  Johns.  322.  §  588. 
V.  Bull,  1  Johns.  Cas.  81,  §  216. 
V.  Burgott,  10  Johns.  457.  §  7. 
V.  Caldwell,  1  Cow.  622,  §§  30, 

65. 
V.  Dubois,  4  Johns.  216,  §  230. 
V.  First  Nat.  Bank,  42  N.  J.  L. 

178,  §  94b. 
V.  Fi-ench,  3  Wend.  337,  §  593. 
V.  Given,  8  Johns.  137,  §  97. 
V.  Green,  4  Johns.  186,  §  588. 
V.    Hopkins,    18    Johns.    487, 

§§  589,  599. 
V.    Langhead,    2    Johns.     75, 

§588. 
V.  Leek,  19  Wend.  339,  §  672. 
V.   Loses,    4   Sandf.    Cli.   381, 

§341. 
V.  Luce,  14  Ohio,  514,  §  231a. 
V.  Moncrief,  5  Wend.  26,  §'593. 
V.  Nichol,  5  Bing.  N.  C.  508, 

§404. 
r.  Niven,  10  Johns.  335,  §  588. 
V.    Parkliurst,    5    Johns.    128, 

§  595. 
V.  Post,  15  Wend.  588,  §  229. 
V.  Richards,  2  Cai.  343,  §  779. 
V.  Rowan,  9  Johns.  330,  §  593. 


TABLE   OF   CASES   CITED. 


xlvii 


Jackson  v.  Rowe,  2  Sim.  &  St.  473, 
§§11,  30,  65a, 
V.  SaniT)le,  1  Johns.  Cas.  231, 

§  595. 
V.  Sharp,  9  Johns.  162,  §  672. 
V.    Stackhouse,    1     Cow.    122, 

§  599. 
V.  State.  19  Ind.  313,  §  1416. 
V.  Stone,  13  Jolms.  447,  §  843. 
V.  Tuttle.  9  Cow.  233,  §  343. 
V.    Van  Valkenburg,    8    Cow. 
260,  §§  34,  97,  188,  245,  252. 
V.  Warren,  32  III.   331,   §§  344, 

357. 
V.  Wilsev,  9  Johns.  267.  §  587. 
V.  Winslow,  9  Cow.  13,  §  672. 
V.    Woolsey,    11    Joluis.    446, 
§  1271. 
Jackson  ex  dem.  Davis  v.  Bronson, 

4  Cow.  51,  §  1178. 
Jacob  V.   Lee,  2  Mood.   &  R.  33, 

§  1282. 
Jacobs  V.   Turner,  2  La.  An.  964, 

§  858. 
Jacobus  V.  Raih'oad,  20  Minn.  125, 

§  558. 
Jaffroy  v.   Brown,    17    Hun,   575, 

§351. 
James  v.  Brown,  11  Mich.  25,  §  203. 
V.  Griffin,  2  M.  &  W.  623,  §  465. 
V.  Morev,  2  Cow.   246,   §§  119, 

186."  272. 
V.  Wade,  21  La.  An.  548,  §  984. 
Jameson  v.  Swinton,  2  Camp.  373 ; 

2  Taunt.  224,  §§  697,  703,  790. 
Janes  v.  Scott.  59'Pa.  St.  178,  §  417. 
Janesville  r.    Milwaukee,    etc.    R. 

Co.  7  Wis.  484,  §  1404. 
Janney  v.   Spedden,    38  Mo.   395, 

§  1050. 
Jaques  v.   Weeks,    7  Watts,   261, 
§§  28,  30,  103,  187,  191,   278,   279, 
284,  299. 
Jarves  v.  Aikens,  25  Vt.  635,  §§  201, 

214. 
Jarvis    v.    Barrett,    14  Wis.    591, 
§  1031. 
V.     Robinson,     21    Wis.     523, 
§  1405. 
Jasper  v.   Porter,   2  McLean,  579, 

§  1404. 
Jay  V.  Richardson,   30  Beav.    563, 

§7. 

JeiTersonville,  etc.  R.  Co.  v.  Cleve- 
land, 2  Bush,  468,  §  570. 

Jefford  V.  Ringold,  6  Ala.  544, 
§§  1286,  1290. 

Jeffreys  v.  Evans,  6  B.  Mon.  119, 
§431. 


Jencksr.  Phelps,  4  Conn.  149,  §348. 
Jenkins  v.   Blizai-d,   1  Stai-k.  418, 
§  503. 
V.  Bodley.  1  Sm.  &  M.  Ch.  338, 

§44.' 
V.  Eldridge,  3  Storv,  181,  §  11. 
V.  State.  38  Miss.  382,  §  1187. 
V.  Usborne,   7   My.  &   G.    678, 
§478. 
Jenlcs    V.   Payne,    15   Johns.    399, 

§  1176. 
Jermings  v.   Moore,   3  Vem.   609, 
§691. 
V.    Roberts,   2   Eng,    L.  &  Eq. 

118,  §  723. 
V.  Wood,"  20  Ohio,  261,  §§  147, 
148,  149. 
John  V.  Citv  Natl  Bank,   62  Ala. 

529,  §  844."' 
Johns  V.  Reardon,   3  Md.   Ch.  57, 
§§  112,  125. 
V.  Scott,  5  Md.  81,  §  3. 
Johnson  v.  Baker,  38  lU.  98,  §  1143. 
V.  Bloodgood,  1  Johns.  Cas.  51, 

§440. 
V.     Chambers,     12    Lid.     102, 

§  1404. 
V.  Clarke,  18  Kan.  157,  §§  65a, 

96,  273,  277. 
V.  Common  Council,  16  Ind.  56, 

§  1412. 
V.  Gwathmey,  4  Litt.  317,  §  307. 
V.   Jones,   4 'Barb.  369,  §§658, 

688. 
V.  Jones.  2  Neb.  126,   §§  1369, 

1378. 
V.  Lafflin,  6  L.   J.   134  (5  Dill. 

65);  103  U.  S.  800,  §676. 
V.  Monell,  13  la.  300,  §  1354.      . 
V.  Powers,  40  Vt.  611,  §  72. 
V.  Reese,  28  Ga.  353,  §  1086. 
V.  Robertson,  31  Md.  476,  §  1417. 
V.  Thweatt,  18  Ala.  741,  §§  318, 

328   334 
V.  Way'  4  Am.  L.  758,  §  80. 
Jolmson  Co.  v.  Thayer,  5  Cent.  L. 

J.  245,  §  676. 
Johnston  v.   Chapman,  3  Pa.    18, 
§421. 
V.  Glancy,  4  Blackf.  94,  §§  44, 
273. 
Johnstone  v.  Huddlestone,  4  B.  & 

C.  922,  §§  629,  645. 
JoUand  v.  Stainbridge,  3  Ves.  Jr. 

478,  §§  29,  245,  258. 
JoUey    V.    Taylor,    1    Camp.    148, 

§  1264. 
Jones  r.  Bamford,  21  la.  217,  §§  185, 
672,  690. 


xlviii 


TABLE    OF   CASES    CITED. 


Jones  V.  Berryhill,  25  la.  289,  §  94a. 
V.  Byi-d,  74  III.  115,  §  llCl. 
V.  Chiles,  3  Dana.  25,  t^  ;^43. 
V.  Earl,  ;57  Cal.  630.  t^  457. 
V.  Fales,  4  Mass.  245,  t,  1397. 
V.  Galis'  Curax'r,  4  Mont.  635, 

4^141. 
V.  Hays,  4  McLean,  521,  §  1404. 
V.  Johnson,  etc.  Co.  8  Neb.  451, 

^  96. 
V.  Lapham,  15  Kan.  540,  §§  3, 

201. 
V.  T^wis,  8  W.  &  S.  14,  ^  876. 
?'.  Love,  9  Cal.  68,  ^1353. 
V.  Marks,  47  Cal.  242,  §§  96, 

273. 
V.  Mansker,  15  La.  51,  §  851. 
V.  Marsh,  4  T.  R.  464,  §  640. 
V.  McNarrin,  68  Me.  334,  g§351, 

374 
V.  Middleton,  29  la.  188,  §  738. 
V.  O'Brien,  36   Eng.  L.   &   Eq. 

283,  §  987. 
V.  Roberts,  65  Me.   273,  g§  119, 

143. 
V.  Smith,  1  Hare,  43,  §§  11,  34, 

35,  40,  281.  282,  284,  288. 
V.  Vorhees,  10  Ohio,  145,  §§  552. 

558. 
V.  Warden,   6  W.   &    S.    399, 

§  821. 
V.  Williams,  11  M.  &  W.  176, 

§  480/1. 
V.  Williams,  24  Beav.  47,  §§  11, 

35,  47,  65«. 
V.  Witter,  13  Mass.  304,  §§  430, 
433,  443. 
Jordan  v.  Black,  3  Murph.  (N.  C.) 
30,  §  431. 
V.  Gillen,  44  N.  H.  424,  g  428. 
V.  Mead,  3  Ala.  437,  §  231. 
Jordon  v.    Hazard,    10    Ala.    221, 
§  1230. 
V.  James,  5  Ohio.  98.  §  464. 
Joyce  i\  Joyce,  5  Cal.  449,  §  1412. 
Judah  V.  Jiidd,  5  Day,  534,  gg  436, 
438. 
V.  Stephenson,     10      la.      492, 
§g  1084,  1138. 
Judd  V.  Woodruff,    2    Root.    298, 

§  156. 
Judson  V.  Corcoran,  17   How.  612, 
§  440. 
V.  Dada,  79  N.  Y.    373,  §§  96, 
324. 
Jumel    V.    Jumel,    7    Paige,    591, 

§310. 
Justice  V.  Elstob,  1  Fost.  &  F.  256. 
§  1282. 


K. 

Kaine  v.  Denniston.  23  Pa.  St.  203, 

t?i;  316.  333. 
Kamena  v.  Kuelbig,  23  N.  J.  Eri. 

78,  §  431. 
Kamm  r.    Stark,   1   Sawyer,  547, 

§  1333. 
Kane  v.  Roberts,  40  Md.  590,  §  96. 
Kansas  City,  etc.  Co.  v.  Simpson, 

2  Pac.  Rep.  831,  S  558. 
Kansas  Citv,  St.  J.  &  C.  B.  R.  t\ 

Campbell,  62  Mo.  585,  §  1316. 
Karr  v.   Karr,   19  N.    J.  Eq.  427, 

§  1148. 
Kasson    v.    Smith,   8  Wend.  437, 

g§  92a,  946. 
Kay  V.  Allen.  9  Pa.  St.  320,  §  393. 
Kearney   r.   Vaughn.  50  Mo.   284, 

§  316. 
Keenan  v.  Mo.  Ins.  Co.  12  la.  126, 

§  678. 
Keenev  v.  Lvon,  21  la.  277,  §  1188, 
Kehler  v.  Jack  Manf.  Co.  55  Ga. 

639,  §  1136. 
Kellar  r.  Savage,  20  Me.  199,  g§  1265, 

1280. 
Keller  i'.  Nutz,  5  S.  &  R.  246,  §8  206, 

210. 

Kelley  v.  Brown.  5  Grav,  108,  §  957. 

V.  Storey,  6  Hoisk.'202,  §  1411. 

Kellogg  V.    Corrico,    47    I\Io.    157, 

§  1066. 

V.  Fanchcr,  23  Wis.   31,  §  373. 

V.   McLaughlin,    8    Ohio,    114, 

§  1130. 
V.  Putnam.  11  Mich.  344,  S  1204. 
V.  Smith,  26  N.  Y.  18,  §§  65a, 

431. 
V.    Stockton,   29    Pa.    St.    460, 
§391. 
Kellum  V.  Smith,  39  Pa.  St.  241, 

§  1336. 
Kelly  V.  Mills,  41  Miss.  207,  §§  103, 

233. 
Kemble  v.  Wallis,  10  Wend.   374. 

§  1389. 
Kemeys  v.  Richards,  11  Barb.  312, 

§  538. 
Kemp  V.    Den-ett,   3    Camp.    510, 

§§  607,  610,  633. 
Kendall  v.  Lawrence,  22  Pick.  540, 

§§  281,  288,  290,  294. 
Kenedy  r.  Northrup,    15  111.    148, 

§  217. 
Kenuedv  v.  Green,  3  M.  &  K.  699, 
'§8  31,  37,  688,  690. 
V.  Bohannon,  11  B.   Mon.  118, 
§492. 


TABLE   OF    CASES    CITED, 


xlix 


Kennedy  v.  Daly-,  1  Sch.  &  Lef.  355, 
§§  50.  63. 
V.    Parke,    17   N.    J.    Eq.   415, 
§436. 
Kenney  v.  Alvater,  77  Pa.  St.  34, 
§500. 
V.  Browne,  3  Eidg.    P.  C,  512. 
§34. 
Kent  V.  Plumer,  7  Me.  464,  §  305. 

V.  Warner.  12  Allen,  561,  §  1397. 
Kepler  v.  Davis,  80  Pa.  St.  153,  §  50. 
Keppel's  Adm'rs  v.  Pittsburg  R.  Co. 

Chase's  Dec.  167,  §  1411. 
Kermott  v.    Ayer,    11    Mich.    181, 

§  1417. 
Kern    v.   Hazerigg,    11    Ind.    443, 

§  344. 
Kerns  v.  Swope,  2  Watts,  75,  §§  13, 

30,  192. 
Kerr  v.  Clark.  19  Mo.  132,  §  613. 
V.  Day,  14  Pa.  St.  112,  §§  278, 

286,  294,  303. 
V.  Hitt,  75  111.  51,  §  1066. 
V.   Kitchen,    17   Pa.    St.    433, 

§§  307,  308. 
V.  Lord  Dungannan,  1  Dr.  & 

War.  509,  §  660. 
V.  McGuire,  28  N.  Y.  446.  §  1284. 
V.  Willan,  2  Stark.   53,  §§  538, 
544. 
Ketchum  v.   Am.  Ex.  Co.  52  Mo. 
390,  §  558. 
V.  Clark,  6  Johns.  144,  §§  486, 
513.  519. 
Kessel  v.   Albetis,    56    Barb.    362, 

§  1404. 
Key  V.  Flint,  8  Taunt.  21,  §  94a. 
Keys  V.  Test.  33  111.  316,  §  "273. 
Kidd  V.  Manley,  28  Miss.  156,  §  1405. 
Ividder  v.   Blaisdell,   45    Me.   461, 
§  1411. 
V.  Peoria,  29  111.  77,  §  1127. 
Kiefferv.    Ehler,    18   Pa.    St.    388, 

§372. 
Killep  V.  Empire  Mill  Co.  2  Nev. 

34,  §§  1190,  1198. 
Killey  v.  Wilson,  33  Cal.  690,  §  273. 
Kilpatrick  v.    Commonwealth,    31 

Pa.  St.  198,  §  1412. 

Kimball  v.  Blaisdell,  5  N.  H.  533, 

§§  214,  216. 

V.  Railroad,  26  Vt.    247,  §  553. 

Kimbro  v.  Lytle,  10  Yerg.  417,  §  946. 

Kimbrough  v.   Davis,  34  Ala.   583, 

§434. 
Kimpton  v.    Glover,   41   Vt.    283, 

§  1234. 
Kincheloe  v.  Holmes,  7  B.  Mon.  5, 
8  1388. 


Kinderley   v.   Jervis,    23  Beav.    1, 

§434. 
King  V.  Arundel,  Hob.  109,  §  1404. 
V.  Bill,  28   Conn.    593,    §§  342, 

347,  348. 
V.  Connolly,  44  Cal.  236,  §  637. 
V.   Harrington.  14    Mich.    532, 

§§  1046,  1081. 
V.  Kent,  29  Ala.  542,  §  1410. 
V.  Kerr,  5  Ohio,  154,  §  480c. 
V.  Dowry,  20  Barb.  532,  §§  1272, 

1291. 
V.  Luffe,  8  East,  193,  §  1415. 
V.  Portis,  77  N.   C.  25,  §  192. 
V.  Ritchie,  18  Wis.  554,  §  1243. 
Kingsbury  v.  Smith,  13  N.  H.  109, 

§  1223. 
Kinning  v.  Buchanan,  8  C.  B.  371 ; 

Sm.  Lead  Cas.  839,  §  1161. 
Kinning,  Ex  parte,   4  C.    B.    507, 

§1161. 
Kinsley  v.  Robinson,  21  Pick.   327, 

§  1004. 
Kipp  V.    Fullerton,   4    Minn.    473, 

§  1383. 
Kirkland  v.  Dinsmore,  62  N.  Y.  171, 

§  554. 
Kirkpatrick       v.      McCoUough,     3 

Humph.  171,  §  738. 
Kirk  wood  v.   Reedy,  10  Kan.  453, 

§  1381. 
Kiser  V.  Heuston,  38  111.  253,  §§  113, 

255 
Kitchen  v.  Crawford,  13  Tex.  516, 

§  1082. 
Kitsmiller  v.   Kitchen,  24  la.  163, 

§  1149. 
Klare  v.  State,  43  Ind.  483.  §  1415. 
Kleeman-y.  Frisbie,  63111.  482,  §431. 
Kleinmanni'.  Boerstein,  32  Mo.  311, 

§860. 
Klemm  v.  Dewes.  28  111.  317,  §  1138. 
Knapp  V.    Runalls,    37    Wis.    135, 

§  960. 
Knarr  v.     Conway,    37    Ind.    257, 

§  1219. 
Knell  v.  Building  Ass'n,  34  Md.  67, 

§  225. 
Knight  V.  Bowyer,  2  D.  &  J.  450, 
§281. 
V.  Pocock,  24  Beav,  436,  §  240. 
Knouff  V.  Thompson,  10  Pa.  St.  57, 

§230. 
Knowles  v.  Gaslight  &  Coke  Co.  19 
Wall.  58,  §  1379, 
V.  Rablin,  20  la,  101,  §  344. 
Knox  V.  Miller,  18  Wis.  397,  §  1371. 
V.  Thompson,  I  Litt.  350,  §§44, 
378. 


1 


TABLE   OF   CASES   CITED. 


Koelor  v.  Bernicker,  63  Mo.   368, 

§349. 
Kohl  V.  Lynn,  34  Mich.  360,  §  77. 
Kohn  V.  Packard,  3  La.  234,  g^  574, 

.577a. 
Kollman  v.   Ex.    Co.   3  Kan.  205, 

§  553. 
Konig  V.  Bayard,  1  Pet.  250,  §  711. 
Koons  V.  Grooves,  20  la.  373,  §  96. 
Kramer  v.  Farm.  &  Mech.  Bank,  15 
Ohio,  253,  §  180. 
V.  Sandford,  4  Watts  &  S.  328, 
§  943. 
Kvamph  v.  Hatz,  52  Pa.  St.  525, 

^g  386,  421. 
Kri.ler  v.  Lafferty,  1  Whart.  303, 

g8  246,  280. 
Kyle  V.  Green,  14  Ohio,  495,  g§  943, 
944. 
V.  Thompson,  11  Ohio  St.  610, 
§208. 


L. 


La  Croix  v.  Sarrazin,  15  Fed.  Rep. 

489,  §  1406. 
Lacustrine,  etc.  Co.  v.  Lake  Gano, 

etc.  Co.  82  N.  Y.  476,  §  96. 
Ladd  V.  Kemiey,  2  N.  H.  340,  §§961, 

975 
Ladle'y  v.  Creighton,  70  Pa.  St.  490, 

§123. 
Lady    Superior    v.    McNamai-a,    3 

Barb.  Ch.  375,  §  143a. 
La  Farge  Ins.  Co.  v.  Bell,  22  Barb. 

54,  i5§  683a,  688. 
Lafayette  Ins.    Co.    v.    French,  18 

How.  404,  §§  1302,  1303. 
Lalitte  v.    Slatter,  6  Biug.  623;   4 

Moore  &    P.  457,   §§  991,    1004, 

1010. 
La  Grange  v.  Chapman,  11  Mich. 

499,  §  1411. 
Lagrave's  Case,  14  Abb.  Pr.  334;  45 

How.  Pr.  301,  §  1358. 
Laing  v.  Coldar,  8  Pa.  St.  479,  §  541. 
Laithe  v.  McDonald,  7  Kan.  254, 

§  1249. 
Lake  v.  Calhoun  Co.  52  Ala.  115, 
§  1417. 
V.  Reed,  29  la.  258,  §  80. 
Lake  Merced  Water  Co.  v.  Cowles, 

31  Cal.  215,  §  1414. 
Lally  V.    Holland,    1    Swan,   396, 

§§  149,  174. 
Lamb  v.  Pierce,  113  Mass.  72,  §§  14, 
244. 
V.  Rudd,  37  la.  618,  §  94b. 


Lamb  v.  Western  R.  Co.  7  Allen,  98, 

§  566. 
Lambert  v.  Ghiselin,   9  How,  552, 
§990. 
V.  Newman,  56  Ala.  623,  §§  10, 

29. 
V.   Sample,   25   Ohio    St.    336, 
§  1347. 
Lamkin    v.    Phillips,    9    Port.  98, 

§434. 
Lamont  v.  Cheshire,  65  N.  Y.  30, 
§49. 
V.  Stimson,  5  Wis.  443,  §§  7, 11, 
29. 
Lamphere  v.  Co  wen,  42  Vt.   175, 

§§  418,  1390. 
Landers  v.  Boulton,   26  Cal.    393, 

§98. 
Landes    v.    Brant,    10    How.    348, 

§i^  44,  273. 
Lane  V.  Jackson,  5  Mass.  157,  §  466. 
V.  Jackson,  20  Beav.  535,  §  375. 
V.  Mason,  5  Leigh,  520,  §  101. 
V.  Steward,  20  Me.  98,  §§  939, 
941. 
Lanfier  v.  Mestier,  18  La.  An.  497, 

§  1401. 
Langan  v.  Hewett,  13  Sm.  &  M. 

122,  §  525. 
Langdale  v.  Trimmer,  15  East,  291, 

§§716.  794,  817. 
Langdon  v.  Poor,  20  Vt.  13,  §§  1107, 
1109. 
V.  Woodfield,  2  B.   Mon.    105, 
§48. 
Lange   v.   Kennedy,  20  Wis.  279, 

§  499. 
Langton  v.   Horton,   1   Hare,  549, 

§433. 
Lank  v.  Hiles.  4  Houst.  (Del.)  87, 

§269. 
Lansing    v.    Gaine,    2  Johns.   300, 

§§  483,  513. 
Laporte  t\  Landry,  5  Mart.  (La.)  N. 

S.  359,  §  879. 
Laporte  City  v.  Goodfellow,  47  la. 

572,  §  1409. 
Larabee  v.  Searsport,  42  Me.  202, 

§  1400. 
Large  v.  Moore,  17  la.  258,  g  434. 
Larkin,  Ex  parte,  L.  R.  14  Ch.  Div. 

566,  §  672. 
Larrabee  v.  Morrison,  15  Minn.  196, 

§  1209. 
Lassell  v.  Burnett,  1  Blackf.  150,  §8. 
Lathrop  v.   MitcheU,  47  Ga.   610, 

§§  1259,  1281. 
Latouch  V.  Lord  Dunsany,  1  Sch. 
&  Lef.  159,  §  104. 


TABLE   OF   CASES   CITED. 


Lavalle  v.  People,  6  111.  App.  157, 

§  1404. 
Laverone  v.  Mangianti,  41  Cal.  138, 

§  480i. 
Lawler  v.   Whette,  1  Handy,  29, 

§  1058. 
Lawrence  v.  Bowman,  1  McAllis- 
ter C.  Ct.  419,  g§  1324,  1325. 
V.  Clark,    14    M.    &    W.    250, 

§  1287. 
V.  Ralston,  3  Bibb,  102,  §§  956, 

966. 
V.  State,  30  Ark.  719,  §>  1031. 
V.  Tucker,  7  Me.  195,  §g  96,  674, 
688. 
Lawson  v.  Farmers'  Bank,  1  Ohio 
St.    206,   §§   11,    716,    805, 
811. 
V.  Townes,  2  Ala.  373,  §  397. 
V.  Weston,  4  Esp.  56,  gS  80,  81. 
Lawton  v.  Gordon,  37  Cal.  202,  g§  3, 

28,  65,  66,  96,  244. 
Layer's  Case,  1  Leacli  Cr.  Cas.  336, 

g  1261. 
Lazier  v.  Westcott,  26  N.  Y.  146, 

§  1414. 
Lear?.  Polk  Co.  Copper  Co.  21  How. 

493,  §§  44,  273. 
Leach  v.  Beattie,  33  Vt.  195,  §§203, 
208. 
V.  Hewitt,  4  Taunt.  731,  §  1017. 
Leach's  App.  44  Pa.  St.  140,  §  147. 
Leason  v.  Holt,  1  Stai-k.  186,  §§  536, 

537. 
Leathers  v.  Commercial  Ins.  Co.  2 

Bush,  296,  §  981. 
Leavenworth,  etc.  R.  v.  Maris,  16 

Kan.  333,  § 
Leavitt  v.  Peck,  3  Conn.  124,  §  525. 
V.  Putnam,  3  N.  Y.  494,  §  738. 
V.  Simes,  3  N.  H.  14,  §  1281. 
Lee  V.  Averell,  1  Sandf.  731,  §  348. 
V.  Cato,  27  Ga.  637,  §  225. 
V.  Dick,  10  Pet.  482,  §§  395,  396. 
V.  Green,  6  De  G.  M.  &  G.  155, 

§§  240,  375. 
V.  Hewlett,  2  K.  &  J.  531,  §§  7, 

35. 
V.  Marsh,  43  Barb.  102,  §  553. 
Lee  Co.    v.   Rogers,   7  Wall.  181, 

§§  357,  375. 
Leeds  v.   Cameron,  3  Sumn,  488, 

§272. 
Leffingwell  v.  White,  1  Johns.  Cas. 

99,  §  938. 
Legge    V.    Thorpe,    13    East,   171, 

g§  1004,  1009. 
Leggett  V.  Bullock,  Busb.  L.  283, 
§  231a. 
d 


Le  Grand  v.  Hampden  Sidney  Col. 

5  Munf.  324,  §§  1408,  1409. 
Leiby  v.  Wolf,  10  Ohio,  83,  §§  205, 

223. 
Leiraan's  Estate,  32  Md.  225,  §g  17, 

225. 
Leitcii  V.  Wells,  48  Barb.  637,  §  341 ; 

(48  N.  Y.  585),  §  371. 
Le  Marchand's  Case,   1  Leach  Cr. 

Cas.  336,  §  1261. 
Lenike  v.  Railroad,  39  Wis.    449, 

§570. 

Le  Neve  v.  Le  Neve,  3  Atk.  646 ;  1 

Ves.  Sr.  64;   White  &  T.  Lead. 

Cas.  in  Eq.  109,  g§  50,  231a,  687, 

690. 

Lenheim  v.  Fay,  27  Mich.  70,  §  94rt. 

Lenoir  v.  Broadhead,  50  Ala.  58, 

g  1367. 
Lenox  v.   Roberts,  2  Wheat.   373, 

§§  779,  814. 
Lent  V.  Padleford,  10  Mass.   230, 

§  1387. 
Leonard  v.  Gary,    10  Wend.    504, 
§956. 
V.  Shirts,  33  Ind.  214,  §  416. 
Leppoc  t\   Nat'l  Union  Bank,  32 

Ind.  136,  §  225. 
Le    Roy  v.   Johnson,    2    Pet.  186, 

§§  483,  524. 
Lesassier  v.  The  Southwestern,  2 

Woods,  35,  §  473. 
Lesem  v.   Herriford,  44  Mo.   323. 

§67. 
Lessee  of  Allen  v.  Parish,  3  Ohio, 

107.  §  225. 
Lester    v.    Hardesty,    29    Md.    50, 

§225. 
Leverich  v.  Mayor  of  New  York,  66 

Barb.  623,  §  657. 
Levy  V.  Cohen,  4  Ga.  1,  §  383. 
V.  State,  6  Ind.  281,  §  1404, 
Lewin  v.  Dills,  17  Mo.  64,  §  1250. 
Lewis    V.    Bakd.    3    McLean,    56, 
§§  119,  192. 
V.   Bakewell,   6    La.    An.    359, 

§768. 
V.  Bond,  18  Beav.  85,  §§  46,  282. 
V.  Boskins,  27  Ark.  61,  §  316. 
V.  Botkin,  4  W.  Va.  533,  §  1375. 
V.  Bradford,  10  Watts,  67,  §§  11, 

28,  278. 
V.  Dvvight,  10  Conn.  95,  §  402. 
V.  Grace,  44  Ala.  307,  §  1153. 
V.  Harris,  31  Ala.  689,  §  1411. 
V.     Madison,      1     Munf.    303, 

§  351. 
V.  McClure,  8  Oreg.  273,  §  1417. 
V.  Mew,  1  Strob.  Eq.  180,  §  351. 


lii 


TABLE   OF   CASES    CITED. 


Lewis  V.  The  Success,  18  La.  An.  1, 
§  480 ». 
V.  Wintnule,  76  Ind.  13,  §  1414. 
Lewiston  Falls  Bauk  v.   Leonai-cl, 

43  Mo.  144,  i^  893. 
Libby  v.    Pierce,    47    N.   H.    309, 

Si?  740,  741. 
Life  Ins.  Co.  v.  Poolv,  5  Jur.  N.  S. 
129,  §  431. 
V.  Rowana,  20  N.  J.  Eq.  389, 
8142. 
Life  &  Fire  Ins.  Co.  v.  Mechanics' 

Life  Ins.  Co.  7  Wend.  31,  §  1280. 
Light   V.  Kingsbury,    50   Mo.    331, 

§738. 
Lightner  v.  Mooney,  10  Watts,  407, 

i$8  196,  278,  295. 
Likens  v.  McCormick,  39  Wis.  313, 

§§  1030,  1355. 
Lilley  v.  Miller,  2  Nott  &  McC.  257, 

§  1009. 
Lilliard  v.   Ruckers,   9    Yerg.    64, 

§  215. 
Linie  Rock  Bank  v.  Hewitt,  52  Me. 
51,  §?5  480o,  874. 
V.  Plimpton,  17  Pick.  159,  §  055. 
Lincoln,  etc.  Ass'n  v.  Hass,  10  Neb. 

583,  f-oe. 
Lindaur   v.   I^Iut.  Safety  Ins.   Co. 

3  Ark.  461,  §  1235. 
Lindenburger  v.  Beall,   6  Wheat. 

104,  §i^  781,  882. 
Linderman  v.   Guldiu,  34  Pa.   St. 

54,  §  767. 
Lindo  V.  Unsworth,  2  Camp.  602, 

§  819. 
Lindsay    v.    Attorney-General,   33 

Miss.  508,  §  1412. 
Linville  v.  Welch,  29  Mo.  203,  §  109. 
Lisher  v.  Pai-melee,    1  Wend.  22, 

8  1166. 
Lisk  V.  Woodruff,  15  111.  15,  §  480c. 
Litchfield  v.  Burwell,   5  How.  Pr. 
•    346.  §  1413. 
Litt    V.    Cowley,     7    Taunt.     169, 

§§  463,  470. 
Little  V.   Clarke,   36  Pa.   St.    114, 
§  504. 
V.  Page,  44  Mo.  412,  §  72. 
Littlefield  v.   Smith,    17  Me.   337, 

§  436. 
Littleton  v.  Giddings,  47  Tex.  109, 

§^11,  36,  65a,  279. 
Livingston  v.  Dean,  3  Johns.  Ch. 

479,  §  431. 
Livingstone  v.  Taimer,  14  N.  Y.  64, 

§  597. 
Lloyd  V.  Atwood,  3  De  G.  &  J.  614, 
§§  674,  688. 


Lloyd  V.  Banks.  L.  R.  3  Ch.  488, 

g§  3,  8,  433. 

V.  Hooper,  7  East,  634,  §  1181. 

V.  Wattnford  &  Limerick  R.  Co. 

9  Liaw  T.  (N.  S.)  89,  8  560. 

Loan  &    Trust    Co.   v.   Maltby,   8 

Paige,  361,  ^5  214. 
Lockwood  V.  Crawford,   18  Conn. 

361,  g  738. 
Lodge   V.    Simonton,    3    Pa.    439, 

§S  321,  324. 

Logan  V.  Herron,  8  S.  &  R.   459, 

tjij  581,  608. 

V.  Williams,  76  111.  175,  §  127. 

Lohman  v.  State,  81  Ind.  15.  §1417. 

Lollar  V.  Jauvrin,   47   N.    H.  334, 

§  480o. 

London  &  N.  W.   R.   Co.  v.  Bart- 

lett,  7  H.  &  N.  400,  §§  462, 

464. 

V.  Dunham,  18  C.  B.  826,  §561. 

Lonergan  v.   Stewart,    55  III.  44, 

§  480o. 
Long  V.   Dollarhide,   24  Cal.    218, 
§§  205,  210. 
V.  Railroad,  50  N.  Y.  76,  §  554. 
V.  Stapp,  49  Mo.  508,  §  280. 
V.  \v  ellcr,  29  Gratt.  347,  §  307. 
Loomis  V.   Eagle  Bank,  2  Disney 
(Ohio),  285,  g  683a. 
V.  Loomis,  v26  Vt.  198,  §  436. 
V.  Mimrv,  15  N.  Y.  312,  §  94a. 
V.  Rilev^!  24  111.  307,  §  344. 
Loose  V.  Loose,  36  Pa.  St.  538.  §  972. 
Lord  V.  Ocean  Bank,   20  Pa.  St. 

384,  §  94a. 
Losev  V.  Simpson.  11  N.  J.  Eq.  246, 

§§205,  207.210,  G80. 
Ltxid  V.  Merrill,  45  Me.  516,  §  821. 
Loudon  V.  Tiifuny,  5  Watts  &  S. 

367,  §  431. 
Lough  ridge  v.  Bowland,  53  Miss. 

546,  §§  29,  373,  303. 
Louisiana  State  Bank  v.   Buhler, 
23  La.  An.  83,  §  1004. 
V.  EUery,  4  Mart.  N.  S.  (La.) 

87,  §  749. 
V.  Rowel,  6  Mart.  N.  S.   (La.) 

506,  §  880. 
V.  Senecal,  13  La.  525,  §§  083, 
683«. 
Louis^■ille  Manf.  Co.  v.  AVelch,  10 

How.  461,  §?;  406,  411.  420. 
Loveland  v.  Burk,  120- Mass.  139, 

^;  576. 
Lovejoy    v.     Lunt,    48    Me.    377, 
■  §^  1031,  1119. 
V.  Spafford,  4  Cent.  L.  J.  80; 
93  U.  S.  430,  §  519. 


TABLE    OF    CASES    CITED. 


liii 


Loveridge  v.  Cooper,  3  Russ.  31, 

§433. 
Low  V.  Blinco,  10  Bush,  331,  §§  232, 
266. 
V.  Howard,  10  Cush.  159,  §  958. 
V.  Pratt,  53  111.  438,  §  351. 
Lowe  V.  Beckwitb,  14  B.  Mon.  184, 

§§  390,  407.  409. 
Lowery  v.   Scott,    24  Wend.   358. 

§  918. 
Lowry  v.  Bi'own,  1  Cold.  456,  §  13. 

V.  Steele,  27  Ind.  168,  §  936. 

Lowther  v.    Carlton,   2  Atk.   242, 

§§  29,  62.  348. 

V.   Commonwealth,  1   Hen.  & 

Munf.  202,  §  480c. 

Loyd  t'.    Anglin,    7  Yerg.  (Tenn.) 

428,  §  1097. 
Luckin  v.  Commonwealth,  4  Bush, 

440,  §  1409. 
Ludlow  V.  Kidd,  3  Ohio,  541,  §  358. 
r.  Van  Ness,  8  Bosw.  178,  g§  97, 
103. 
Lufkms  t\  Collins,  6  W.  Coast  Rep. 

594,  §  440. 
Lumbert    v.    Palmer,   29-  la.  104, 

§  1397. 
Lundie  v.  Robertson,  7  East,  231, 

§975. 
Lutlier  V.  McMichael,  16  Humph. 

298,  §  1093. 
Lyendecker  v.  Martin,  38  Tex.  287, 

§  1151. 
Lyle  V.  Bradford,  7  Mon.  Ill,  §  348. 
Lyon  V.  Johnson,  28  Conn.  1,  §§505, 

512. 
Lysaght  v.  Bryant,  2  Carr.  &  Kir. 

1016,  §  722. 
Lyttle  V.   Pope,   11   B.   Mon.  297, 
§348. 

M. 

Mac  V.  Titcomb,  19  Ind.  135,  §  1404. 
Macev   v.  Fenwick,    9  Dana,  198, 

§§  355,  373. 
Macklin    v.   Waterhouse,  5    Bing. 

212,  §  544. 
Mackreth  v.  Symmons,  15  Ves.  350, 

§50. 
Mackubin  v.   Smith,  5  Minn.  376, 

§§  1041,  1042. 
Macon  v.  Slieppard,  2  Humph.  335, 

§§  273,  278,  289,  305. 
Mactier  v.  Fi-ith,  6  Wend.  103,  §  383. 
Madden  v.  Fielding,  9  La.  An.  505, 

§  1138. 
Maddox  v.  Humphries,  30  Tex.  494, 

§348. 


Madison  Co.  Com'rs  v.  Burford,  93 

Ind.  383,  §  1404. 
Magee  v.   Badger,  34  N.   Y.   247, 
§80. 
V.  Railroad,  45  N.  Y.  514,  §  554. 
Magill    V.   Merrie,  5  B.  Mon.  168, 

§494. 
Mahew  v.  Eames,  3  B.  &  C.  601. 

§551. 
Mahoney  v.  Middleton,  41  Cal.  41, 

§§  96,  203,  231a. 
Maignan  v.  Raikoad,  24  La.  An. 

333,  §  570. 
Maitland    v.   Backhouse,   17  L.  J, 

Ch.  121,  §  10. 

Major  V.  Bukley,  51  Mo.  227,  §§  65a, 

307. 

V.  State,  2  Sneed.  11,  §  1413. 

Majors  v.  Cowell,  51  Cal.  478, J  374. 

Malick  V.  Tower  Grove,  etc.  R.  Co. 

57  Mo.  17,  §§  480fc,  695. 
Mallory  v.  Stoddard,  6  Ala.   801, 

§  143a. 
Malpas  V.   Ackland,   3  Russ.  273, 

§§  15,  307. 
Mammon  v.  Hartman,  51  Mo.  168, 

§  87.        • 
Manchester  Bank  v.  Fellows,  28  N. 
H.  802,  §§  794,  797. 
V.  Oliver,  10  Cush.  557,  §  924. 
Mangles  v.  Dixon,  3  H.  L.  Cas.  702, 

§§  10,  431. 
Mann  v.  Best,  62  Mo.  491,  §  239. 
V.   Moors,   Ry.   &  Mood.   249, 
§926. 
Manning  v.  Gasharie,  27  Ind.  399, 

§§  1236,  1417. 
Mansfie-ld  v.  Gregory,  8  Neb.  435, 

§96. 
Manufacturers'   Bank  v.   Bank  of 
Pa.  7  W.  &  S.  335,  §  186. 
V.  Hazard,  30  N.  Y.  226,  §  925. 
Manufacturers'      Nat.      Bank      v. 

Barnes,   65  111.  69;  16  Am.  Rep. 

576,  §  671a. 
Manwan-ing  v.   Sands,  1  Str.  706, 

§671. 
Mara  v.  Pierce,  9  Gray,  306,  §  274. 
Marberger  v.  Pott,  16  Pa.  St.  9,  §  422. 
March  v.   Putney,   56    N.   H.    34, 

§§  402,  426. 
Market  Bank  v.  Pacific  Bank,  27 

Hun,  465,  §  1417. 
Markward  v.   Doriat,  21  Ohio  St. 

637,  §  1190. 
Marlett  v.  Jackman,  3  Allen,  287, 

§498. 
Marlin  v.  Maynard,  16  N.  H.  165, 

§480w. 


liv 


TABLE   OF    CASES    CITED. 


Marlow  v.    Jklarlow,    77    111.    633, 

§§  1257,  1291. 
Marseilles,  etc.  Co,  In  re,  L.  R.  7 

Ch.  161,  §  674. 

Mai-sh  V.    Austin,    1    Allen,    232, 

§  143o. 

V.  Cohen,  68  N.  C.  283.  §  1216. 

V.  Maxwell,  2  Camp.  210,  §  799. 

Marsh's  Adni'rs  v.  Bast,  41  Mo.  493, 

§  1358. 
Maishall  r.   Baker,-  3  Minn.   320, 
§821. 
V.  Columbia  Ins.  Co.  27  N.  H. 

157,  §  683a. 
V.  Fisk,  6  Mass.  24,  §  96. 
V.  Mitchell,  34  Me.  227 ;  35  Me. 

221,  g§  941,  946. 
V.   Roberts,   18  Minn.  405;  10 
Am.  Rep.  201,  §  203. 
Marston  v.   Hobbs,   2    Mass.    433, 

§  480c. 
Martalet  r.  Clary,  20  Ark.  251,  §  480Z. 
Mai-tin  v.  Boyd,  11  N.  H.  385,  §  87. 
V.   Cotter,   3  Jones  &  L.  496, 

§  321. 
V.  Hall,  26  Mo.  386,^^  480n. 
V.  Jackson,  3  Casey,  504,  §§  288, 

290. 
V.  Martin,  51  Me.  366,  §  1411. 
V,  Nash,  31  Miss.  324,  §  326. 
V.  Richardson,   68  N.   C.   255, 

§  431. 
V.  Sale,  1  Bailey's  Eq.  1,  §  226. 
V.  Sedgwick,  9  Beav.  333,  §  433. 
V.  Stiles,  11  Ves.  Ch.  194.  ^  344. 
V.  Winslow,  2  Mason,  241,  g  957. 
Martindale  v.  Price,  14  Ind.  115, 

§§  116,  175. 
Marvin  v.   Adamson,   11    la.   371, 

§§  420,  422. 
Maiy   Washington,    The,    Chase's 

Dec.  125,  g§  571,  573,  576. 
Mason  v.  Martin,  4  Md.  124,  §  97. 
V.  Paine.  Walk.  Ch.  453,  §§  15, 

308. 
V.  Pritchard,  2  Camp.  436,  §410. 
Maspero  v.  Pedesclaux,  22  La.  An. 

227,  §  765. 
Massachusetts  Bank  v.  Oliver,  10 

Cush.  557,  §  763. 
Massey  v.   McHwain,  2  Hill's  Ch. 
421,  §  305. 
V.  Thompson,  2  Nott  &  McC. 

105,  §  101. 
V.  Tm-ner,  2  Houst.  79,  §  87. 
Massie  v.  Greenhow,  2  Pat.  &  H. 

255,  §§  8,  29. 
Masters  v.  Warren,  27  Conn.  293, 
§  1239. 


Masterson  v.  EHIington,  10  Mo.  713, 
§  1211. 
V.    Hemdon,     10    Wall.    416, 

§§  1209,  1219. 
V.    Le    Claire,    4    Minn,    163, 
§  1413. 
Mathews  v.   AUen,  16  Gray,   594, 

g  956. 
Matteson  v.   Smith,   37  Wis.  333, 

§§  1346,  1371. 
Matthew    v.    Dare,    20    Md,    248, 

§  1225, 
Matthews  v.  Demerritt,  22  Me,  312, 
§§  281,  294. 
V.  Hougliton,  10  Me.  420,  §  442. 
Maul  V.  Rider,  59  Pa,  St.  167,  g§  29, 

210,  279. 
Maupin  v.   Emmons,  47  Mo,  304, 

§g  12,  10,  17,  244,  673a, 
Maundrell  v.   Maundrell,   10  Ves, 

260,  §  57. 
Maving  v.  Todd,  1  Stark,  72,  §  536, 
Maxfield  v.  Burton,   L.  R,  17  Eq, 

15,  §^  56,  65a, 
May  V.  Boisseau,  8  Leigh,  164,  §  953, 
V.  Borel,  12  Cal,  91,  §  689, 
V.  Burdett,  9  Q.  B.  101 ;  1  Halo 

P,  C.  430,  §  480i. 
V.  Coffin,  4  Mass.  341,  §  991, 
V.  Le  Claire,  11  Wall.  217,  §  316, 
V.  McKeenon,  6  Humph.  209, 
§96. 
LlaybeiTy  v.   Morris,  62  Ala.    113, 

§  372. 
Maybin  v.  Kirby.  4  Rich.  Eq.  105, 

§  10. 
Mavlield  v.  Wheeler,  37  Tex.  256, 

§'  390. 
Mavham  v.  Coombs,  14  Ohio,  428, 

§■§  225,  231a,  245,  248. 
Mayo  V.  Cartwright,  30  Ark,  407, 

§97, 
Mayor,  etc,  v.  Mun-ay,  7  De  G,  M, 
&  G,  497,  §  11, 
V.  Williams,  6  Md,  235,  §§  17, 
40,  118,  226, 
McAndrew  v.  Whitlock,  53  N.  Y. 

40,  §  564. 
McAnnelly  v.   Chapman,   18  Tex. 

198,  §  67. 
McArthur  v.  Dudgeon,  15  Eq.  Cas. 

102,  §  1207. 
McAteer  v.  McMullen,  2  Pa.  St,  32, 

§§  319,  324. 
McCabe  v.  Grey,  20  Cal.  509,  §§  97, 
208. 
V.  Le  Compt,  15  Mo.  78,  §  1211, 
McCamant  v.  Patterson,  39  Mo.  100, 
§§  219,  223. 


TABLE   OF   CASES    CITED. 


Iv 


McCann  v.  Railroad,  20  Md.  202, 
§553. 

McCarthy  v.  Railroad,  30  Pa.  St. 

247,  §  5G6. 
McClane  v.  Fitch,  4  B,  Mon.  599, 

§781. 
McClean  v.  Hertzog,  6  S.  «&  R.  154, 

§  1263. 
McCloskv    V.    Cobb,    2    Bond,   16, 

§  1356." 
McClure  v.  Thistle,  2  Gratt.   182, 
§101. 
V.  Wells,  46  Mo.  311,  §  1381. 
McClurg  V.  PliilUps,   57  Mo.   214, 

§§  140,  211. 
McCollum  V.  Gushing,  22  Ark.  540, 

§  1388. 
McComb    V.   Thompson,    2    Minn. 

139,  §  87. 
McGonneU  v.  Downs,   48  111.  271, 
§  480e. 
V.  Reed,  5  111.  117,  §  307. 
V.  Slettinius,  7  111.  707,  §  1245. 
McCord  V.  Beattj^  12  la.  299,  §  434. 
McCormac  v.  Irwin.  35  Pa.  St.  Ill, 
§  1253. 
V.  Wlieeler,  36  lU.  114,  §§  674, 
688,  692. 
McCoy  V.  Trustees,  5  S.  &  R.  254, 

§§  205,  223. 
McGrummen    v.    McCrummen,    5 

Mart.  (La.)  N.  S.  158,  §  879. 
McCulloch  V.  Gowher,  5  Watts  & 
S.  427,  §  273. 
V.  Eagle  Ins.  Go.  1  Pick.  278, 

§  384. 
V,  Eudalay,  3  Yerg.  346,  §  217. 
V.  Gregory,  1  Kay&  J.  286,  §35. 
McCutchen  v.  McGahay,  11  Jolins. 
281.  §  671. 
V.  Miller,  31  Miss.  65,  §§  342a, 
353 
McDaniel   v.   Cai-rell,   19  lU.   226, 

§  1354. 
McDaniels  v.  Flower  Brook  Man. 

Co.  22  Vt.  274,  §  10. 
McDermott  v.  Board  of  Police,  25 
Barb.  635,  §§  1139,  1334. 
V.   Strong,   4  Johns.  Gh.   687, 
§§  342a,  353. 
McDonald  v.   Bailey,  14  Me.   101, 
§937. 
V.  Gaunt,  2  Pac.  Rep.  871,  §  10. 
V.  Leach,  Kingsley  (Conn.),  72, 

§  155. 
V.  Western  R.  Corp.  34  N.  Y. 
497,  §  570. 
McDugald  V.  Smith,  11  Ired.  (N.  C.) 
576,  §  1227. 


McElroy  v.  English,  2  Cranch  C.  C. 

528,  §  820. 
McFall  V.  Sherrard,   Harper,  295, 

§  101. 
McFetridge  v.   Piper,   40  la.    627, 

§  464. 
McGehee  v.  Gindrat,   20  Ala.  95, 

§§  10,  35. 
McGinnis    v.   State,   24    Ind.    500, 
§§  1262,  1414. 
V.  Washington  Hall  Ass'n,  12 
Gratt.  602,  §  1239. 
lilcGregor  v.  McGregor,  21  la.  441, 
§357. 
V.  Hall,  3  Stew.  &  P.  397,  §  154. 
Mcllvaine  v.  Legare,  34  La.   An. 

923,  §  1405. 
Mcintosh  V.  See,  57  la.  156,  §  1415. 
Mclver  v.  Richardson,  1  Maul.  &  S. 

557,  §  393. 
McKeckine  v.  Hoskins,  23  Me.  230, 

§§  294,  299. 
McKenzie  v.  Perril,  15  Ohio  St.  168, 

§273. 
McKeon  v.  Lee,  4  Rob.  (N.  Y.)  449, 

§  577a. 
McKewer  v.  Eartland,  33  la.  348, 

§  738. 
McKilhp  V.   Mcllhenny,  4  Watts, 

317.  §  1257. 
McKinney  v.   Brights,  16  Pa.  St, 
399,  §  3. 
V.  Crawford,  8  S.   &  R.   351, 

§  739. 
V.  Rutherford,  1  Dev.  &  Bat. 
Eq.  14,  §  431. 
McKinnon  v.   Bliss,  21  N.  Y.  206, 

§  1411. 
McLanahan  v.   Reeside,   9  Watts, 

508,  §  188. 
McLaren  v.  Thurman,  8  Ark.  813, 

§  348. 
McLaughlin  v.  Shepherd,  32  Me. 

143,  §§  65a,  273,  277. 
McLeod  V.   Fu-st  Nat'l    Bank,   42 

Miss.  99,  §§  30,  65. 
McLourine  v.  Monroe,  30  Mo.  462, 

§  369. 
McManus  v.  Lancashire,  etc,  R'y, 

4  H.  &  N.  327,  §  560. 
McMechan  v.  Griffing,  3  Pick,  149, 

§§  244.  281.  288,  291,  294. 
McMillan  v.  M.  S.  &  N.  I.  R.  Co.  IG 

Mich.  79,  §§  553,  555,  565,  570. 
McMurtrie  v.  Jones,  3  Wash,  206, 

§  843. 
McNary  v.  Southworth,  58  111.  473, 

§  316. 
McNatt  V.  Jones,  52  Ga.  478,  §  871. 


Ivi 


TABLE    or    CASES    CITED. 


McNeilage  i\   Halloway,   1   B.    & 

Aid.  218,  g  728. 
McNeill  V.  Tenth  National  Bank, 
55  Barb.  59.  f?  73. 
V.  Wvatt,  3  Humph.  125,  §§  717, 
735. 
McNeilly  v.  Cont.  Life  Ins.  Co.  66 

N.  Y.  23,  §  671. 
McNichol  V.  Pad  tic  Ex.  Co.  12  Mo. 

App.  401,  g  1417. 
McPherson  v.  Housel,  2  Beasley, 

299,  g  339. 
McQueen  v.  Farquhar,  11  Ves.  482, 

§34. 
McRae  v.   Rhodes.    22    Ark.    315, 

§  1004. 
McWilliams  v.  Webb,  32  la.  577, 

§  436. 
Mead  v.  Engs.  5  Cow.  303,  §  714. 
V.   Lord  On-ery,   3   Atk.   235, 
§  350. 
Mechanics'   Bank   v.    Griswold,    7 
Wend.  165,  §§  732,  943. 
V.  Livingston,    33    Barb.    458, 

4^510. 
V.  Seaton,  1  Pet.  309,  §  672. 
V.  Schaumburg,    38    Mo.    228, 
§§  674,  688. 
Mechanics'    &    Traders'    Bank    v. 
Gordon,  5  La.  An.  604,  §§  480a, 
542. 
Mechanics'  &  Traders'  Bank  of  N. 
O.  V.   Compton,  3  Rob.  (La.)  4, 
§  896. 
Meehan  v.  Williams,  48  Pa.  St.  338, 

§§  29,  44,  288,  294,  688. 
Meeker    v.    Van     Renssalaer,    15 

Wend.  397,  §  4807i. 
Mellon's  Appeal,   32  Pa.   St.    121, 

§227. 
Melvin  v.  Clark,  45  Ala.  285,  §  1374. 
Mendioca  v.  Ovr,  16  Cal.  368,  J^  1363. 
Mentross  v.   Clark,  2  Sandf.  115, 

§94a. 
Mercantile  Ins.  Co.  v.  Corcoran,  1 

Gray,  75,  §  440. 
Merch    v.    Smith,    7    Wend.    315, 

§  480o. 
Merchants'  Bankr.  Birch,  17  Johns. 
25,  i^  766. 
V.  Easley,  44  Mo.  286,  §  1017. 
Merchants'  Disp.  Tr.  Co.  v.  Hallock, 

64  ni.  284,  §  566. 
Merchants'  National  Bank  v.  Com- 

stock,  55  N.  Y.  24,  §  94&. 
Meredith  v.  Santa  Clara,  etc.  Min. 

Ass'n,  60  Cal.  617,  §  1186. 
Merriam  v.  H.  &  N.  H.  R.  Co.  20 
Conn.  354,  §§  455,  456,  532. 


Merrick  v.   Phillips,   58    Mo.    4CG, 
^§  80,  87. 
V.  Wallace,  19  111.  486,  §§  152, 
307. 
Merril  v.   Dawson,    1   Hemp.  563, 

§§  1246,  1404. 
Merrill  v.  Ireland,  40  Me.  569,  §  96. 
V.   Montgomery,  25  ^Mich.  73, 
§  1032. 
Merrills  v.   Swift,   18   Conn.    257, 

§§  180,  181. 
Merriman    v.   Hyde,   2  Neb.    120, 

§118. 
Merritt    v.   White,   37    Miss.    438, 

§  1367. 
Mersey,   The,    Blatch.   Prize    Cas. 

187,"§  1417. 
Mertins     v.     Joliffe,     Amb.     811, 

§  313. 
Merwin  v.  Smith,  2  N.  J.  Eq.  182, 

§  1088. 
Merz    V.   Kaiser,  2    La.  An.   577, 

§  855. 
Meshke  v.  Van  Doren,  16  Wis.  319, 

§  1414. 
Mesick  v.  Sunderland,  6  Cal.  297, 

§g  122,  191. 
Messenger  v.  Armstrong,  1  T.  R. 
43,  §  649. 
V.  Penn.  R.  R.  Co.  37  N.  J.  L. 
531, §  555. 
Metcalf  V.   Pulvertoft,   2  Ves.    & 
Beam.  200,  §  348. 
V.  Richardson,  2  Eng.  L.  &  Eq. 

301,  §  831. 
V.  Smith,  40  Mo.  572,  §  348. 
Metropolitan  Bank  v.  Godfrey,  23 

111.  579.  §§  284,  299. 
Metz  V.  Osborne,  5  Mo.  546,  §  975. 
V.  State  Bank,  etc.  7  Neb.  171, 
§96. 
Meux    V.  Anthony,    11  Ark.   411, 
§348. 
V.  Bell,  1  Hare,  73,  §  433. 
V.  Maltby,  2  Sw.  281,  §  282. 
Meyrick  v.  Woods,  Carr.  &  Marsh. 

452,  ^§  128G,  1292. 

Mich.   Cent.   R.   Co.   v.   Dolan,  32 

Mich.  510,  §  674. 

V.  Hale,  6  Mich.  243,  §  555. 

V.  Ward,  2  Mich.  538,  §  574. 

Michigan,  etc.  R.  v.  Heaton,  3  Ind. 

448,  §  553. 
Michigan  Ins.  Co.  v.  Whittimore, 

12  Mich.  427,  §  1204. 
Micliigan  State  Bank  v.  Peck,  28 

Vt.  200,  4;  402. 
Middlebury  College  v.   Cheney,    1 
Vt.  348,  §  1405. 


TABLE   OF   CASES    CITED. 


Ivii 


Milam  v.  Strickland,  45  ]\Iiss.  721, 

§  1368. 
llilbourn  v.   Fouts,  4  Green  (Ik.), 

346,  §  13G5. 
Miles    V.   Goffinet,    16  Mich.    280, 
§  1170. 
V.  Hall,  12  Sm.  &  M.  332,  §  893. 
V.  Langley,  1  Rus?,  &  My.  39, 
§^  ma,  288,  303. 
Mill  V.   HiU,    12  Jones  &  L.  107, 

§104. 
Miller  v.  Bradford,  12  la.  14,  §§  148, 
149,  167. 
V.    Cresson,    5  W.   &  S.   284, 

§>J  7,  29. 
V.  Finley,  26  Mich.  255.  §  94a. 
V.  Florer.  15  Ohio  St.  148,  §  431. 
V.  Graham,  17  Ohio  St.  1,  §  1109. 
V.     Hackley,     5    Jolms.     375, 

g.^  975,  1021. 
V.  ni.  etc.  R.  Co.  24  Bai-b.  313, 

§683. 
V.  Kershaw',  1  Bailey's  Eq.  479, 

§349. 
V.  Myles.  46  Cal.  535.  §  280. 
V.  Perrine,  1  Hun  (N.  Y.),  620, 

§  1314. 
V.  Race,  1  Burr.  452.  §  81, 
V.  Sherry,  2  Wall.  237,  §§  351, 
353. 

Stocking,     22  Wend.    623, 
§  1170. 
Milliken    v.   Barr,    7    Pa.    St.    23, 

§§  1258,  1261. 
Mills  V.  Beard,  19  Cal.  158,  §  936. 
V.  Bliss,  55  N.  Y.  139,  §'374. 
V.  U.  S.  Bank,  11  \Vheat.  431, 
§§  480o,  836. 
]ymton  V.   Rowland,   11  Ala.   732, 
§§  1222,  1254. 
V.  Turner,  38  Tex.  81,  §  195. 
JMims  V.  Mims.  35  Ala.  23,  §  152. 
V.  Swai-tz,  37  Tex.  13,  §  1404. 
Miner -y.  Clark,  15  Wend.  42o,  §480c. 
V.   Natchez,    4   S.    &  M.    602, 
§§  1086,  1095. 
Mines  v.  West,  38  Ga.  18,  §  372. 
Minna,  The,  Blatch.  Prize  Cas.  333, 

§  1417. 
Mmturn  v.  Fisher,  7  Cal.  573,  §  938. 
Miser  v.  Trovinger,  7  Ohio  St.  281, 

§§  732,  758,  1004. 
Missouri,  Kan.  &  Tex.   R.   Co.  v. 

Crowe,  9  Kan.  496,  §  1310. 
Missouri  Pac.  R.  Co.   v.  Nevin,   2 

Pac.  Rep.  795,  §  4S0a. 
Mitchell  V.  Cross,  2  R.  I.  437,  §  805. 
V.  Gray,  18  Ind.  123,  g§  1084, 
1138. 


IMitchell  V.  Greenwald,  43  Miss.  167, 
§  1375. 
V.  Lipe,  8  Yerg.   179,  §§  1097, 

1098. 
V.  Runkle,  25  Tex.   Supp.  132, 

§§  1138,  114.3. 
V.  Smith,  53  N.  Y.  413,  §  374. 
V.  Stewai-d,  35  L.  J.  Ch.  398, 

§30. 
V.    Woodson,     37    Miss.     567, 
§  1070. 
Mobile,  etc.  R.  Co.  v.  Hopkins,  41 
Ala.  486,  §  558. 
V.  Prewitt,  46  Ala.  63,  §  566. 
V.  Weiner.  49  Miss.  725.  §  553. 
V.  Whitney,  39  Ala.  4C8,  §1405. 
Moblev    V.    Clark,    28    Bai-b.    390, 
§  1019. 
V.  Leophart,  47  Ala.  257,  §  1065. 
Mocatta  v.  Murgati'oyd,  1  P.  Wms. 

393,  §  813. 
Mochler  v.  Towa  of  Shaf tsbury,  46 
Vt.  580;  14  Am.  Rep.  634.  §  480g. 
Modavvell  r.   Hoim-s,  40  Ala.  391, 

§  1417. 
Mohawk    B.uik    r.    Broderick,    13 
Wend.  133.  §  4S0o. 
V.  Corey,  1  HiU,  513,  §  C46. 
Mohr  V.  Bost.  &  Alb.  R.  Co.  106 
Mass.  67,  §  1019. 
V.  Chic.  &  N.  W.  R.  Co.  40  la. 
579,  §  566. 
Moline,  Ex  parte,  19  Ves.  Ch.  316, 

§§  769,  770,  781,  782. 
Mollett  V.   Brayne,   2  Camp.   103, 

§646. 
Molony  v.  Kernon,  2  Dr.  &  War. 

40,  §  660. 

Monell  V.  Smith,  5  Cow.  441,  §  180. 

Monroe  v.  Conner,  15  Me.  178,  §  525. 

V.  Eastman,  31  Mch.  283.  §  64. 

Monroe  County  Com'rs  v.  May,  67- 

Ind.  562,  §  1411. 
Montefiore  v.  Brown,  7  H.  L.  Cas. 

241,  §§  11,  208,  230. 
Montelius  v.  Chai'les,   76  El.  303, 

§  816. 
Montgomery  v.  Birge,  31  Ark.  491, 
§  346. 
V.  Byers,  21  Cal.  107.  §  374. 
V.  Deeley,  3  Wis.  709,  §  1406. 
Montgomery     County     Bank     v. 

Marsh,  7  N.  Y.  481,  §  895. 
Montgomery,  etc,  R.  Co.  v.  Trebles, 

44  Ala.  255,  §  740. 
Moody  V.  Mack,  43  Mo.  210,  §§  789, 
1009. 
V.  Setton,  2  Ired.  Eq.  382,  §  431. 
V.  State.  48  Ala.  115,  §  1404. 


Iviii 


TABLE   OF   CASES    CITED. 


Mooney  v.   Kennett,   19  Mo.   551, 

§  1409. 
Moore  v.  Bennett,  2  Ch.  Cas.  246, 
§g  !•"),  313. 
V.  Coats,  43  Miss.  225,  §  1375. 
V.  Gammel.  13  Tex.  120,  g  1251. 
V.  Rvder,  65  N.  Y.  440,  §  946. 
Moore,  the  John  T.,  4  Am.  L.  T. 

406,  ^  231. 
More  V.  Massini,  32  Cal.  590,  §  428. 
Moreau  v.  Branham,  27  Mo.  351, 
§211. 
V.   Detchemendy,   18  Mo.   522, 
§g  119,  211. 
!^^o^ecock  v.    Dickens,    Amb.  678, 

§  104. 
3Iorehead   v.   Gilmore,  77  Pa.  St. 

118,  t^  80. 
Moreland  v.  Le  Master,  4  Blackf. 
aS3.  g;i  44,  48. 
V.   Richaidson,  22  Beav.  596; 
24  Beav.  33,  §^  282,  303. 
Morgan  v.    Bank   of   Louisville,  4 
Bush,  82,  §  988. 
V.  Dibble,  29  Tex.  107,  g  570. 
V.  Jones,  24  Ga.  155,  g  1272. 
V.  State,  12  Ind.  448,  §  1414. 
V.  Stell,  5  Binn.  305,  ^  671. 
V.  Woods,  33  Ind.  23,  §  1318. 
Morland  v.  Cook,  L.  R.  6  Eq.  252, 

§65a. 
Morrill    v.   Moulton,   40    Vt.    242, 

§§  2,  72,  1238. 
Morris  v.   Bailey,    15    La.   An.    2, 
§  1140. 
V.  Hauser,  2  Mood.  &  R.  392, 

§  1282. 
V.   Ho-le,  37  ni.  150,  §§  307, 

1075. 
V.  Mai-tin,  1  Str.  647,  §  671. 
V.  Rexford,  18  N.  Y.  552,  §  72. 
V.  Shrvock,  50  Mss.  590,  §g  465, 

474. 
V.  Wadsworth,  17  "Wend.  103, 
§208. 
Moi-ris  &  Essex  R.  Co.  v.  Ayers,  29 

N.  J.  L.  393,  §§  568,  570. 
Morrison  v.  Kellev,  22  111.  610,  §  307. 
V.  March,  4  Minn.  422,  §  278. 
V.    McCartney,    30     Me.     183, 
§  1009. 
Morrow  v.  Commonwealth,  48  Pa. 
St.  305,  §  1281. 
V.  Weed,  4  la.  77,  §§  1160, 1161, 
1370. 
Morrow's  Assignees  v.  Bright,   20 

Mo.  298,  §  431. 
Morse   v.   Hewett,   28    Mich.   481, 
S  1405. 


Morton  v.  Robar(\s,  4  Dana,  258, 
§§  232.  266,  273. 
V.  Westcott,  8  Cush.  425,  §§  888, 
902. 
Moseley    v.   Mastin,   37    Ala,   216, 

§  1417. 
Moses  V.  Bost.  &  Me.  R.  Co.  24  N. 
H.  71 :  32  N.  H.  523,  §§  532, 
533,  509,  577. 
V.  Ela,  43  N.  H.  557,  §  946. 
Moshier    v.   Reding,   12    Me.    478, 

i;§  581.  583. 
Mosley  v.  Hatch,108  Mass.  517,§  677. 
V.  Vermont,   etc.   Ins.   Co.   55 
Vt.  142,  §  1416. 
Moss  V.  Atkinson,  44  Cal.  3,  §§  65a, 

273,  279. 
Mossman  v.  Foirest,  27  Ind.  233, 

§  1410. 
Mottr.  Clark,  9  Pa.  St.  399,  §§  119, 
2G2. 
V.  Lansing.  5  Lans.  516,  §  1214. 
Mottram  v.    Hever,   5   Den.    629, 

§§  459,  469. 
Moulton  V.  de  ma  Carty,  6  Rob.  (N. 
Y.)  470,  §  1319. 
t'.  Mason.  21  Mich.  364,  §  1275. 
Mountford  v.   Scott,   T.  &  R.  274, 

§  689. 
Mount  Pleasant  Bank  v.  McLeran, 

26  la.  300,  g§  697.  712. 
Mount  Vernon  Bank  v.  Holden,  2 

R.  I.  467,  §  821. 
Mowatt  V.  Howland,  3  Day,  353, 

i^513. 
Mower  v.   Leicester,  9  Mass.  247, 

§  480fir. 
Movnaiian  v.   Hanford,   42   Mich. 

330,  §  87. 
Mueller  v.  Bates,  2  Disney  (Ohio), 
318,  §  1378. 
V.  Eugeln.  12  Bush,  441,  §§  77, 
307,  322,  336. 
Muu-  V.  JoUv,  26  Beav.  143,  §§  297, 
299." 
V.  Schenck,  3   Hill,  228,   §  436. 
Mulford  V.  Griffin,  1  Fost.  &  F.  145, 

§  486. 
MuUen  v.  Higgins,  13  Abb.  Pr.  (N. 

S.)  297,  §  1161. 
MuUer  v.  Hoyt,  14  Tex.  49,  §  1259. 
MuUigan  v.   Railroad,  36  la.  181, 

S  554. 
MuUiken  v.  Graham,  72  Pa.  St.  484, 

§g  7,  28,  36. 
MuHins  V.   Sparks,   43    IMiss.    129, 
§  1345. 
V.    Wimberly,    50    Tex.     457, 
§§  65a,  273,  279. 


TABLE    OF    CASES    CITED. 


lix 


MuUison's  Estate,  68  Pa.  St.  312, 

§65a. 
Mulvey  v.  Carpenter,  78  ni.  580, 

§  1205. 
Miimma  v.  McKee,10  la.  107,  §  1327. 
Munday  v.  Vawter,    3  Gratt.  518, 

§  176. 
Mundorf  v.  Wickersham,  63  Pa.  St. 

87:  3  Am.  Rep.  531,  §  671a. 
Mimn  V.  Baker,  3  Stark.  255,  §g  539, 
550. 
V.  Baldwin,  6  Mass.  816,  §  882. 
V.  Best,  63  Mo.  491,  §  316. 
V.  Burch,  25  111.  35,  §  1417. 
V.  Commission   Co.    15   Jolms. 
44,  ij  '663. 
Munroe  v.  Eastman,  31  Mich.  283, 

sio. 

Munson  v.  Town  of  Derby,  37  Conn. 

298 ;  9  Am.  Rep.  332,  y?  480g. 
Murcliison  v.  McLeod,  2  Jones  (N. 

C.)  L.  239.  8  1260. 
Murdock  v.  Finney,  21  Mo.  138,  §  436. 
Murphy  r.  Hendricks,  57  Ind.  593, 
§  176. 
V.  Keves,  39  N.  Y.  Sup.  Ct.  18, 
§"94a. 
Murray  v.  Arnisti'ong,  11  Mo.  209, 
§  586. 
V.   Ballou,    1  Johns.    Ch.    506, 

^  341. 
V.  Barney,  34  Barb.  336,  §  1417. 
V.    Blatcliiord,    1  Wend.   583, 

^  366. 
V.  Finster,  3   Johns.   Cla.    155, 

S  341. 
V.  King,  5B.  &  Aid.  165,  §  1397. 
V.  Lardner,  2  Wall.  110,  g  80. 
V.  Lylburn,   2  Johns.  Ch.  441, 

§  431. 
V.  Mumford,  6  Cow.  441.  §  496. 
Mun-ell  V.  AVatson,   1   Tenn.    Ch. 

342.  §  307. 
Musgrove  v.   Bonser,  5  Oreg.  313, 

g§'4,  7,  13,  136,  246.  250,  673a. 
Musick  V.  Barney,  49  Mo.  458,  §§  12, 

133. 
Mussey  v.  Raynor,  23  Pick.    323. 

§i^  388,  397. 
Mussina  v.  Moore,  13  Tex.  7,  §  1082. 
Mut.   Life  Ins.  Co.  v.  Dake,  1  Abb. 

(N.  Cas.)  381,  §  165. 
Myers  v.  Davis,  23  N.  Y.  489,  §  431. 
V.  Overton,  4  E.  D.  Smith  (N. 

Y.),  428,  §  1160. 
V.  Ross,    3    Head   (Tenn.),    59, 
K^  676,  694. 
Mysoner  v.  French,  73  N.  C.  609, 
§  143a. 


Nalle  V.   Fenwick,   4    Rand.    585, 

§  1101. 
Naron    v.    Gwin,     43    ]\Iiss.    346, 

§  1375. 
Nash  V.  Gilkeson,  5  S.  &  R.  352, 
§  1321. 
V.    Harrington,    1   Aik.    49;    2 
Aik.  9,  §§  973,  991. 
Nashville  Bank  v.  Bennett,  1  Yerg. 

166,  g§  884,  885. 
Nashville  R.  Co.  v.  Elliott,  1  Cold. 

(Tenn.)  611.  §  674. 
Nathan  v.  Sloan,  34  Ai'k.  534,  §  87. 
National   Bank  v.  Burkhardt,   100 
U.  S.  686,  §  480n. 
V.   Marr,   6  Bush    (Ky.),    614, 

S  Qftfi 
V.  Norton*  1  HiU,-572,  §  683. 
National  Exch.   Co.   v.   Drew,   C3 

Eng.  L.  &  Eq.  1,  §  654. 
National  Ins.  Co.  v.  Chamber  of 

Com.  69  111.  33,  §  1381. 
National  Pemberton  Bank  v.  Loii- 

gee,  108  Mass.  371,  §  87. 

National  Security  Bank  v.   Cush- 

man,  131  Mass.  490,  ^§  683,  G83a. 

Neal  V.  Railroad,  8  Jones  L.  483, 

§  566. 

V.  Taylor,  9  Bush,  380,  §§  794, 

846. 
V.  Wood,  33  Ind.  533,  §  933. 
Neale  v.  Ha.gthrop,  3  Bland,  551. 

g§  15,  310,  313. 
Nealley  v.    Greenough,   25  N.  H. 

335,  §  1363. 
Neardhouser  v.  State,  28  Ind.  257, 

§  1410. 
Neese  v.  Farmers'  Ins.  Co.  55  la. 

604,  §  1405. 
Neesome  v.  Clarkson,  2  Hare,  163, 

§690. 
Nelson  v.  Allen,   1  Yerg.   (Tenn.) 
360,  §  327. 
V.    Bridgeport,    8    Beav.    527, 

§  1405. 
V.  Hageistown  Bank,  27  Md. 

51,  §  96. 
V.  Pierce,  6  N.  H.  194,  §  1119. 
V.   Sims,    1   Cush.   (Miss.)  383, 

§§  17.  30. 
V.  Wade,  21  la.  49,  §§  176,  286. 
Neltharpe  v.  Holgate,  1  Coll.  203, 

§303. 
Nesbit,  In  re,  2  D.  &  L.  529,  §  1404. 
Nevan  v.  Roup,  8  la.  207,  §  1253. 
Nevins    r.    Bank,    10    Mich.    547, 
§§  831,  829,  846. 


Ix 


TABLE    OF   CASES    CITED. 


Ne%v  England  Car  Spring  Co.  v. 
Union  Rubber  Co.  4  Blatchf.  1, 
tj  1309. 
New  Haven  Co  Bank  v.  Mitchell, 

15  Conn.  20G.  ij  101. 
New   Hope   Bridge  Co.  v.  Phoenix 

Bank,  3  N.  Y.  loG,  ^  683. 
New  Jersey  St.  Nav.  Co.  v.  Mer- 
chants' Bank,  6  How.  344,  §§  553, 
559. 
New  Orleans  v.  Labott,  33  La.  An. 

107, 45 1409. 
New    Orleans,    etc.   Canal    Co.  v. 
Templeton,  20  La.  An.  141,  §  1404. 
New  Orleans  Savings  Bank  v.  Har- 
per, 12  Rob.  (La.)  231.  §  997. 
New  York  Cent.  Ins.  Co.  r.  Kelsey, 
13  How.  Pr.  535,  g  1178. 
V.  National   Prot.    Ins.    Co.  20 
Barb.  408.  §  688. 
New  York,  etc.  Co.  v.  Schuyler,  34 

N.  Y.  30,  g  G83«. 

New  York  Life  Ins.  Co.  v.  Cutler, 

3  Sandf.  Ch.  170,  g;<  294. 299. 

V.  Smith.  2  Barb.  Ch.  82,  S  431. 

Newborn  v.  Just,  2  Carr.  &  P.  76, 

§  558. 
Newconiet  i'.  Brotzman,  69  Pa.  St. 

185,  §  521. 
Newhall  v.   Cent.   Pac.  R.  Co.  51 
Cal.  345,  §  472. 
V.  Pierce,  5  Pick.  450,   §§  297, 

299,  305. 
V.  Vargas.   13  Me.   93,   §§  457, 
464,  477. 
Newlin  v.  Newlin,   8  S.   &  R.  41, 

§  1321. 
Newman  r\  Chapman,  2  Rand.  93, 
§§  338.  357. 
V.  Cincinnati,     18    Ohio,    331, 
§  1055. 
Newmarch  v.   Clay,  14  East,  239, 

§§  486,  490,  492. 
Newsom  v.   Clarkson,   2  Ha.  163, 

§  308. 
Newsome  r.    Coles,  2  Camp.  617, 
§g  483.  487,  513. 
V.  Collins,  43  Ala.  656,  §§  307, 
828. 
Newstead  v.  Seai'les,   1  Atk.  265, 

§672. 
Newton  v.  McLean,  41  Barb.  285, 
4?  96. 
V.  State  Bank,  14  Ark.  9,  §  1094. 
Newton's  Heirs  v.  State  Bank,  22 

Ark.  19,  §1091. 
Nice's  Appeal,  54  Pa.  St.  200,  §  96. 
Nichols  I'.   Boston,    98    Mass.    39, 
g  1313. 


Nicholson  v.  Gouthit,  2  H.  Bl.  609, 
^g  952,  991. 
V.   Marders,  3  Rob.  (La.)  242, 
§897. 
Niles  V.  Martin,  4  Mich.  557,  §  4S0g. 
Nixon  V.  Hamilton,  2  Dr.  &  Wail. 
364.  g  689. 
V.  Palmer,  8  N.  Y.  398,  §§  663, 
667. 
Noble  V.  Thompson  Oil  Co.  79  Pa. 

St.  354,  g  432. 
Noel  V.    McCoory,   7  Coldw.   623, 

§602. 
Norcross  v.  Widgery,  2  Mass.  505, 

§§  244,  278. 
Normanvdle  v.  Pope,  2  Cro.   137, 

§  1390. 
Norris  v.  Despard,  38  Md.  491.  §  87. 

r.  Le  Neve,  3  Atk.  26,  §  688. 
North  r.   Turner,  9  S.  &  R.  244. 

§428. 
North  Bank  v.   Abbott,    13  Pick. 

465.  g  1397. 
North  River  Bank  v.  Aymar,  3  Hill 
(N.  Y.),  262,  §g  660,  681,  683,  683«. 
North  Whitehall,  In  re,  47  Pa.  St. 

156,  §  1132. 
Northern  v.  Williams,   6  La.  An. 

578,  §  563. 

Northriip  v.  Shephard,  23  Wis.  513, 

§  1371. 

V.  Svracuse,  B.  &  N.  Y.  R.  Co. 

3  Abb.  App.  Dec.  386,  §  57(>. 

Northrup's  Lessee  v.   Brehmer,   '■'- 

Ohi(i,  392,  g  225. 
Noi-thy  V.  Field,  2  Esp.  613,  §  469. 
Norton    v.    Birge,   35    Conn.    25.). 
§347. 
V.  Eastman,  4  Me.  521,  §§  383, 
391. 
•     V.  Foster,  12  Kan.  44.  §  431. 
V.  Hevwood,  20  Me.  359.  g  1272. 
V.  Lewis,  2  Conn.  478,  §  1397. 
V.  Pickering,  8  B.  &  C.   610, 

§  1004. 
V.    Rose,   2  Wash.    (Va.)  23o. 
§436. 
Norvell  v.  Hudgins,  4  Munf.  490, 

§92a. 
Norway    v.    Rowe,    19    Ves.    144, 

§  65a. 
Norway  Plains  Co.  v.  Boston  &  M. 

R.  Co.  1  Gray,  263,  §g  564,  566. 
Noyes  v.  Hall,  97  U.  S.  34.  §§  65a, 
244.  246,  273,  276,  288. 
r.  Harr,  13  la.  570.  §  167. 
Nugent  V.  Opdike,  9  Hob.  '(La.)  453, 

§434. 
Nute  V.  Nute,  41  N.  H.  60,  §  17. 


TABLE    OF    CASES    CITED. 


Ixi 


O. 


O'Brien  v.  Norris,  16  Md.  122,  §  457. 
O'Comier    v.   Koch,   56    Mo.    259, 

§  1414. 
O'Neil  V.  Garrett,  6  la.  480.  §  463. 
O'Neill  V.  N.  Y.  &  Hud.  E.  E.  Co. 

60  N.  Y.  138,  §  532. 
O'EeillY  V.  Nicholson,  45  Mo.  160, 

§339. 
O'Eourke  v.  O'Connor,  39  Cal.  442, 

§§  6oa,  279,  286. 
Oakes  v.  Munroe,  8  Cush.  282,  §631. 
Oats  V.  Walls,  28  Ark.  244,  §  1'53. 
Occuni  Co.  V.  Sprague  Co.  34  Conn. 

529,  §  480/1. 
Odd  Fell.  S.  Bank    v.  Banton,  46 

Cal.  604,  §  96. 
Oeh-icks    v.    Ford,    23    How.    49, 

§  480». 
Ogden    r.    Cowley,  2    Johns.  274, 
§  1397. 
V.  Dobbin,  2  Hall,  112,  §  717. 
V.  Haven,  24  111.  57,  §  264. 
V.  Walters,  12  Kan.  282,  §  1048. 
Oglesby  v.  Steamboat,  10  La.  An. 

117,  §  956. 
Ohio,  etc.  Co.  v.  Ledyard,  8  Ala. 
866,  §  96. 
V.  Selbv,  47  Ind.  471,  §  558. 
Olcott  V.  Eobinson,  21  N.  Y.  150, 

§1101. 
Olendorf   v.   Swartz,   5    Cal.    480, 

§964. 
Oliver  v.  Bank  of  Tenn.  11  Humph. 
74,  §§  1004,  1005. 
V.  Harvev,  5  Oreg.  360,  §  1220. 
V.  Piatt,  3  How.  333,  §§  11,  15, 
308,  312. 
Oppenheimer  v.  U.  S.  Ex.  Co.  69 

111.  62,  §  554. 
Orange  County  Bank  v.  Brown,  9 

Wend.  85.  Ji  542. 
Orear   v.    McDonald,   9  GUI,   350, 

§  1011. 
Oriental  Bank  v.  Blake,  22  Pick. 

206,  §  763. 
Ormsby  v.  Town  of  Granby,  48  Vt. 

44,  §  1222. 
Orndorf  v.  Adams  Ex.  Co.  3  Bush, 

194,  §§  553,  558. 
Orr    V.    McGiuness,    7    East,    359, 

§  1009. 
Orrick    v.   Colston,   7    Gratt.    189, 

§  87. 
Orr  Water  Ditch  Co.  v.  Reno  W. 

Co.  5  W.  Coast  Rep.  666,  §  6836. 
OrvLs    V.    Newell,    17    Conn.    97, 

§§  191,  208. 


Osborn  r.  Cloud,  21  la.  238,  §  1188. 
Osborne  v.  Moncure,  3  Wend.  170, 

§  780. 
Ostrander  v.  Brown,  15  Johns.  89, 

§§  574,  576. 
Oswald  v.  Grew,  29  Eng.  L.  &  Eq. 

85.  §  1138. 
Oswego  Bank  v.  Knower,  HiU  & 

Den.  122.  §  946. 
Otis  V.  Dargan,  53  Ala.  178,  §  1084. 
Ottuniwa   V.    Parks,    4U    la.    119, 

§  480«i. 
Ouimet  v.  Henshaw,  35  Vt.   604, 

§570. 
Overman  v.  Hoboken  City  Bank, 

30  N.  J.  L.  61,  §  480o. 
Owen    V.    Homan,   4   H.   L.    997, 

§§  10,  11. 
Owens  V.  Kinsey,  6  Jones'  L.  (N.  C.) 
38,  §  1224. 
V.  Miller,  29  Md.  144,  §  225. 
V.  Roberts,  36  Wis.  258,  §§  672, 
690. 
Owings  V.  Hull,  9  Pet.  607,  §  1404. 
Oxford  Bank  v.  Haynes,  8  Pick. 

423,  §  418. 
Oxford  Rate,  8  El.  &  Bl.  184,  i;  1407. 
Oxwith  V.  Plummer,  2  Vern.  636, 

§§  65a,  281,  294,  303. 


Packard  v.   Getman,  6  Cow.  757, 
§  453. 
V.  Johnson,  51  Cal.  545,  §  96. 
Packwood  v.  Gridley,  39  111.  388, 

§88. 
Page  V.  Thompson,  43  N.  H.  378, 
§  434. 
V.  Waring,  76  N.  Y.  463,  g§  96, 
206,  357,  375. 
Pagett  V.  Curtis,  15  La.  An.  451, 

§  1136. 
Paine  i\  Mooreland,  15  Ohio,  435, 

§S  1057,  1160. 
Palfrey  v.  Portland,  etc.  R.  Co.  4 

Allen,  55,  §  1405. 
Palgi-ave  v.  Windliam,  1  Str.  212, 

§  1387. 
Fallen  v.  Hollidaysburg,  40  Pa.  St. 

206,  §  44. 
Palmer  v.  Bates,  22  Minn.  532,  §  297. 
V.  Wheeler,    2    Ba.    &    B.    18, 
g§  15,  313. 
Palomeres,  Estate  of,  63  Cal.  403, 

§  1136. 
Papin  V.  Buckingham,  38  Mo.  454, 
§  1191-  " 
V.  Ryan,  32  Mo.  21,  §  1404. 


Ixii 


TABLE   OF   CASES   CITED. 


Parent  v.  Walmslcy,   20  Ind.   82, 

§  1404. 
Parish  v.  Brooks,   4    Brews.    154, 

§§  30,  65. 
Park  V.  Bates,  12  Vt.  387,  §  280e. 
Parke  v.  Chadwick,  8  W.  &  S.  96, 

§§  10,  10. 
Pai-ker  v.  Fay,  43  Miss.  2G0,  §  29. 
V.  Hill,  8  Mete.  447,  §§  119,  141, 

142,  143. 
V.  Kane.  4  Wis.  1,  §^  10,  16. 
V.  Header,  32  Vt.  300,  §  1300. 
V.  Middlebrook,  24  Conn.  207, 

<^G7. 
V.  Osgood.  3  Allen,  487,  §  14. 
V.  Sedwick.  5  Md.  281,  §  1300. 
V.  Whyte,  i  H.  &  M.  167,  §  286. 
Parkin  v.  Carruthers,  3  Esp.  246, 

g§  483,  517. 
Parkist  v.  Alexander,  1  Jolms.  Ch. 

394,  gj5  112,  113. 
Parks  tJ.  Jackson,  11  Wend.  442, 

§§  363,  368. 
Parman  v.  Brewster,  15  Gray,  271, 

§423. 
Parnilee  v.   Gather  wood,    36    Mo. 

479,  §  76. 
Parret  v.  Shaubhut,  5  Minn.  323, 

§§  119,  137. 
Parry  v.  May,  1  IMood.  &  Eob.  279, 

V.  Woodson,  33  Mo.  347,  g  1318. 
Parsons  v.  Hoyt,  24  la,  154,  §§  360, 
368, 
V.  Loyd,  3  Wilson,  K,  B.  341, 

§  1159. 
V.    Monteath,    13    Barb,    353, 
§553, 
Partridge    v.    Davis,   20  Vt.    499, 
§§  420,  422. 
V.  Smith,   2  Biss,    183,  §§  12, 
161.  183. 
Pate  V.  McClm-e,  4  Poind,  164,  §  956, 
Path  V.  Anstatt,  4  W.  &  S.  307, 

§96. 
Patience  i\  Townley,  2  J.  P,  Smith, 

223,  §  982. 
Patrick    v.    Davis,    15    Ark,    363, 
§  1109, 
V.  Morse.  64  Cal.  462,  §  1201, 
Patten  v.   iloore,   32   N.    H.   382, 

§§  113,  288,  290. 
Patterson  v.  Dormer,  48  Cal.  369, 
§96. 
V.  Franklin  Ins.  Co.  22  Pittsb. 

L.  J.  201,  §  488*1. 
V.  Hubbard,  30  Bl.  201,  §  1226. 
V.   McCausland,   3  Bland,   69, 
§  1415. 


Patterson  v.  AVynn,  5  Wheat.  232, 

§  1413, 
Patton  V.   Caldwell,    1  Dall.   419, 
§  480/, 
V.    Gleason,    106     Mass,    439, 

§94a. 
V.  Ins.  Co,  40  N.  H,  375,  §§  687, 
689. 
Paul  V.  Clu-istie,  4  Harr,  &  McH. 
161,  §  748. 
V.  Connersville,  etc.  R,  Co.  51 

Ind.  527,  §§  16,  25. 

V.   Witmau,   3  W,   &  S,  409, 

g?$  480o,  480d, 

Payne  v.  Cave,  3  T.  R.  148,  §  381. 

V.  Floiu-uoy,  29  Ai'k.  500,  §  87, 

V.  Patrick,  21  Tex,  680,  §  714. 

Pavne  v.  TreadweU,  16  Cal.   220, 

g;5  1404,  1405. 
Paytona,  The,  2  Curtis,  21,  §  573. 
Peabody  r.  Fenton,  3  Barb,  Ch,  451, 
^24. 
r.   Hamilton,    106    Mass.   217, 

^  1357. 
r,  Phelps,  9  Cal.  213,  §  1146. 
Peacock  v.  Purcel,  14  C.  B.  (N.  S.) 

V.  Rhodes,  2  Doug.  611,  g  80. 
Peak  V.  North  Staffordshire  R,  Co. 

10  H.  L.  Cas.  478,  §  560. 
Pearce    v.  Hooper,    3    Taunt.   60, 
§  1278. 
V.   Longfit,    101    Pa.   St.    507, 
§  1410, 
Pearson  v.    Bradley,  48    111.    250, 
g  1102. 
V.  Crallan,  2  Smith,  404,  §  823. 
V.  Daniel,  2  Dev.  &  Bat.   366, 

§7. 
V.    Dai-rington,    32    Ala.    227, 

§  1417. 

V.  Lovejoy,  53  Barb,  407,  §  1198, 

V.  Morgan,  2  Bro.  Ch.  353,  §§  7, 

35, 

Peay  v.  Capps,  27  Ark,  160,  §  316. 

Peck    V.   Mallams,    10  N,   Y,   509, 

§§  149,  158. 
Peckham  v.  Oilman,  7  Minn.  449, 

§87. 
Peebles  v.  Reading,  8  S.  «fe  R.  484, 

J5  29.      . 
Peet  V.  Zanders,   6  La.   An.   364, 

§  990. 
Pell  V.  McEh-oy,  36  Cal,  268,  §§  65a. 

273,  280,  299. 
Pelton  V.  Renssalaer,  etc.  R.  Co.  54 

N.  Y.  214,  g  576. 
Pendleton    v.    Commonwealth,    4 
Leigh,  694,  §  1262. 


TABLE   OF    CASES    CITED. 


Ixiii 


Pendleton   v.   Fay,   2  Paige,   202, 

§§  10,  22. 
Pennell  v.  Monroe,   30  Ai-k.   661, 

§  1115. 
Pennoyer  v.   Neff,   Q5  U.   S.   714, 

§  1057. 
Pennsylvania  Co.  v.  Frana,  13  111. 

App.  91,  i5  1410. 
Pennsylvania  R.  Co.  v.  Henderson, 
51  Pa.  St.  315,  §  558, 
V.  McClosky,  23  Pa.   St.    526, 
§  558. 
Penny  v.  Crane  Bros.  M.  Co.  80  111. 
244,  §  394. 
V.  Watts,  1  Macn.   &  G.    150, 
§S  30,  56. 
Penobscot  R.  Co.  v.  Weeks,  52  Me, 

456,  §  1138. 
People    V.    Bacon,    18    Mich.   247, 
§  1143. 
V.  Bernard,  43  Cal.  385,  §  1351. 
V.  Buchanan,  1   Idaho  (N.  S.), 

681,  §  1409. 
V.  Burton,  65  N.  Y.  452,  g  1358. 
V.  Callahan,  60  How.  Pr.  372 : 

23  Hun,  581,  i^  1410. 

V.  Centre,  6  W.  Coast  Rep.  150 ; 

61  Cal.  191,  ^§  1202,  1209, 

1216. 

V.  Chee  Kee,  61  Cal.  404,  §  1415. 

V.  De  La  Guerra,  24  Cal.  73, 

§  1414. 
V.  Fennell  (Utah),  6  West  Coast 

Rep.  837,  ^1210. 
V.  Grio-sby,  62  Cal.  482,  §  1220. 
V.  Herman.  45  Cal.  689,  §  1145. 
V.  Highway  Com'rs,  14  Mich. 

528,  §  1119. 
V.    Holbrook,-    13    Johns.     90, 

,  g  1202. 
V.  Huber,  20  Cal.  81,  §  1031. 
V.  Join-,  22  Mich.  461,  §  1413. 
V.  Lyman,  2  Utah,  30,  §  1412. 
V.    Mahaney,    13    Mich.     481, 

S  1404. 
V.  Robinson,  17  Cal.  363,  §  1411. 
V.     Tallman,     36     Bai-b.     222, 

§  1139. 
V.  Whyler,  41  Cnl.  351,  §  1123. 
People's  Bank  v.   Keech,   26  Md. 

521,  §§  751,  759, 
Pepper  v.  George,  51  Ala.  190,  §  689. 
Pepper's  Appeal,   77  Pa.   St.    373, 

§117. 
Perkins  v.  Barstow,   9  R,   I.    507, 
§87. 
V.  Bradley,  1  Hare,  219,  §  689. 
v.- Jordon,  35  Me.  23,  §  480?i. 
V.  Swank,  43  Miss.  349,  §  273. 


Perkins  v.  Wash.  Ins.  Co.  4  Cow, 

645,  §  653. 
Perrin  v.  Reed,  35  Vt.  2,  §  192. 
PeiTine  v.  Miller,  4  Thomp.  &  C, 

36,  §  1314. 
Peny  v.   Fitzhowe,   8  Q,   B,    757, 
§  480/i. 
V.  Green.  19  N.  J.  L,  61,  §  943. 
V.  HoU,  2  De  G.  F.  &  J.  38, 

g§  10,  34,  56,  674. 

V.  John,  79  Pa.  St.  411,  §  iSOg. 

V.  Siter,  37  Mo.  273.  §  1221. 

V.  Thompson,  98  Mo.  249,  §  553, 

Peru  V.  French,  55  111.  317,  §  480g. 

Peterhoff,  The,  Blatch.  Prize  Cas. 

463,  §g  1410,  1417. 
Peters  v.    Goodrich,   3   Conn.  146, 
§§  10,  208. 
r.  Hobbs,  25  Ark.  67,  §§  928, 

985. 
V.  Newku-k,  6  Cow.  103,  §1138, 
V.  St.  Louis,  etc.  R.  Co,  59  Mo. 
406,  §  1161, 
Peterson,   Ex  parte,   33    Ala.    74, 

g  1412. 
Peto  V.  Hammond,  30  Beav,  495, 

§46. 
Peti-ee  v.  Bell.  2  Bush,  58,  §  357. 
Petrie  v.   NuttaU,    11    Exch.    569, 

§  480/. 
Pettibone  v.  Griswold,  4  Conn.  158, 

§g  47,  149,  179. 
Peychard  v.  Citizens'  Bank,  21  La. 

An.  262,  g  97. 
Phelan  v.  Moss,  67  Pa.  St.  59,  §  80. 
Phelps  V.  Hunt.  40  Conn.  97,  g  1234. 
Philadelpliia,  etc.  R.  Co.  v.  Lehman, 

56  Md.  209,  §  1415. 
Philipe  V.   Harberlee,  45  Ala.  597, 

§  913. 
Philips  V.  Reitz,  16  Kan.  396,  §  10. 
Pliillips  V.  Alderson,  5  Humph,  403, 
§  862, 
V.  Bank  of  Lewiston,    18  Pa. 

St.  394,  §§  25,  117. 
V.  Bowen,  2  Pa.  St.  20,  §  1230. 
V.  Costley,  40  Ala.  486,  g§  65a, 
273. 
Philliskirk  v.  Pluckwell,  2  M,  &  S, 

393,  §  728. 
Pliipson  V.  KJieUer,   1  Stark.   116, 

§939. 
Phoenix    Ins,    Co.    v.   Church,   59 

How.  Pi-.  293,  §  1405. 
Pickard  v.  Perley,  45  N.  H,  188, 
g§  616,  619. 
V.  Polhiraus.  3  Mich,  185,  §  1247. 
Pickering    v.    Busk,    15   East,   38, 
§§  70,  652,  653, 


Ixiv 


TABLE   OF    CASES    CITED. 


Pickering  v.  nfracome  R'y,  L.  R. 

3  C.  P.  23").  i^  434. 
Pier  V.  Carr,  6'J  P;i.  St.  326,  ^  G44. 
V.    Ileinrichoffen,  52  Mo.    333, 
§  1397. 
Pierce  v.  Indscth,  lOG  U.  S.  546, 
§  1413. 
V.  Pendar,  5  Mete.  852,  §§  844, 

846.  854. 
V.  Ricliardson,   87  N.  H.  306, 

45  not). 

V.  Tavlor,  23  Me.  246,  §  207. 
V.  AViiitney.  29  Uc.  188. 5<  480». 
Pigott  V.  Snt'll,  59  111.  106,  j^g  1349, 

1372. 
Pike  V.  Arinstead,  1  Dev.  Eq.  110. 
^  253. 
V.  Galvin,  29  Me.  183,  §§  214, 

216. 
V.    GoodnoVv,    12    Conn.     472, 
*?  310. 
Pilcher  r.  Rawlins.  L.  R.  11  Eq.  53 ; 

7  Ch.  259,  i;  807. 
Pillow   r.    Hardeman,   3    Humph. 

(Tenn.)538,  §926. 
Pilmer  v.  Branch  of  State  Bank, 

16  la.  312,  t?  1227. 
Pindall    v.    Trevor,   30    Ai'k.    249, 

§  377. 
Pindell  v.  MaydwcU,  7  B.  Mon.  314, 

§348. 
Pinkerton  ■?'.    Manchester,   etc.  R. 

Co.  43  N.  H.  424,  §  440. 
Pitcher  v.  Barrows,  17  Pick.  361, 
g§  119,  515. 
V.  Livingston.  4  Johns.  1,  §480e. 
V.  Rawlins,   L.  R.   11   Eq.    53, 
g  65a. 
Pitkin    V.    Leavitt,     13    Vt.     379, 

§§  480c,  480;;i. 
Pitman  v.  Gaty,  10  111.  186,  §  284. 

V.  Sofley,  04  III.  155,  g  29. 
Pitney  v.  Leonard,  1  Paige,  461,  §  8. 
Pitre  V.    Offut.    21    La.    An.    679, 

^  480». 
Pitts  V.  Mower,  18  Mc.  361,  §  434. 
Pittsburgh,  etc.  R.  Co.  v.  Elliott,  38 

Ind.  153,  g  1219. 
Piatt    V.    Robhison,    10  Wis.    128, 

§  1196. 
Pleasant  v.  Benson,  14  East,  234, 

!^624. 
Ploughboy,  The,  1  GaU.  41,  §  67. 
Plumb  V.  Fluitt,  2  Anstr.  432,  §§  8, 

37. 
Plumer  v.  Robertson,  6  S.  &  R.  179, 

§297. 
Polk    V.    Spinks,    5    Coldw.    431, 
§  983. 


Pollard  V.  Somerset  Mut.  Fire  Ins. 
Co.  42  Me.  221,  §  432. 
V.     Wegener,      13    Wis.     569, 
§§  1160,  1345,  1371,  1372. 
Pomeroy    v.    Betts,    31    Mo.    419, 
§.§  1031.    1054,    1059,    1060, 
1084,  1136. 
V.   N.   Y.   &  N.   H.   R.   Co.  4 
Blatch.  120,  §  1306. 
Pomroy  i\    Stevens,    11   Met.   244, 

§§  14,  96,  244,  274. 
Ponder  v.  Scott,  44  Ala.  241,  §  84. 
Pons  V.  Kellev,  2  Havw.  45,  §  991. 
Pope  V.  Garland,   4  Y.   &  C.  Ex. 
394,  ij§  65a,  321. 
V.  Headen,  5  Ala.  433,  §  1108. 
Porter  v.  Bank  of  Rutland,  19  Vt. 
410,  §§  673a,  6836,  689. 
V.  Chicago   &  R.  I.  R.  Co.  20 

111.  407.  §  566. 
V.  Cole,  4  Me.  20,  §§  246,  251. 
V.  Kimball,  53  Barb.  467,  §  935. 
V.  Pillsbury,  36  Me.  278,  §  1235. 
V.    Rayworth.     13    East,    417, 

§975. 
V.  Sevy,  43  Me.  519,  §  245. 
Porthouse  v.  Parker,  1  Camp.  82, 

§751. 
Portis  V.  Hill,  3  Tex.  278,  §  280. 
Portwood  V.  Wilburn,  33  Tex.  713, 

§  1152. 
Potier    V.   Barclay,    15    Ala.    439, 

§  1257. 
Potter  V.  Sanders,  6  Hare.  1,  §§  55, 

383. 
Potts  V.  Bell.  8  T.  R.  548,  §  980. 
Powell  V.  Dillon,  2  Ba.  &  B.  416, 
§§281,  282,  303. 
V.  Myers,  26  Wend.  591,  §  552. 
V.  Peun.  R.  Co.  32  Pa.  St.  414, 

§558. 
V.  Waters,  17  Johns.  176,  §§  94a, 
946. 
Power  V.  Kane,  5  Wis.  265,  §  480n. 
Powers  V.  McFerran,  3  S.  &  R.  44, 

§217. 
Powles  V.  Page,  3  M.  G.  &  S.  16, 

§  683a. 
Prather    v.    Pritchard,  26  Ind.   65, 

§  1246. 

Pratt  V.  Hoag,  5  Duer,  631,  §  341. 

V.  Page,  32  Vt.  13,  §§  489,  519. 

V.  Richards,  69  Pa.  St.  53,  §  643. 

V.    Tinkom,      21     Mimi.     142. 

§§  1103,  1133. 

Prell  V.   McDonald,    7    Kan.   426, 

§  1404. 
Prentiss  v.  Danielson,  5  Conn.  175, 
§§  943,  963. 


TABLE   OF   CASES    CITED. 


Ixv 


Prentiss    v.  Garland,   64  Me.  155, 

§§  420,  423. 
V.  Sinclaii-,  5  Vt.  149,  §§  485, 
515. 
Prescott    V.   Heard,   10    Mass.   60, 
^278. 
V.  Hull.  17  Johns.  284,  §  434. 
■y..Nevens,  4  Mason,  330,  §  280. 
President,  etc.   of  Conners^dlle  v. 
Woodleigh,  7  Blackf.  102,  §  1254. 
Presley  v.  Anderson,  42  Miss.  274, 

§  1375. 
Preston  v.   Tubbin,    1  Vern.   286, 

§344. 
Price  V.  Jones,  3  Head,  84.  §  72. 
V.  McDonald,  1  Md.  403,  §§  17, 

36,  357. 
V.  Methodist  Epis.  Ch.  4  Ohio, 

515,  t<  225. 
V.  Page,  24  Mo.  65,  §  1410. 
V.  Powell,  3  N.  y.  332,  §§  571, 

573. 
V.  Young,  1  McCord,  389,  §  991. 
Prickett  v.  Ritter,  16  111.  96,  g  611. 
Prideaux  v.  Collier,  2  Stark.   57, 
■  §  1014. 

Priest  V.  Rice,  1  Pick.  104,  §  235. 
Priezer  i\  Exchange,  etc.  Ins.  Co. 

6  Wis.  89,  §  1404. 
Prindle  v.  Anderson,  19  Wend.  391, 

§§  585,  648. 

Pringle  v.  Dunn,  37  Wis.  449,  §g  11, 

12,  124,  137,  149,  307,  674, 

679,  680. 

V.  Phillips,  5  Sandf .  157,  §  87. 

Pritchett  v.  Sessions,  10  Rich.  L. 

293,  §§  687,  689. 
Proctor  V.    Cooper,   3  Drew,    1 ;  1 

Jur.  (N.  S.)  149,  §§  240,  375. 
Pruitt    V.    Railroad,   63    Mo.    537, 

§  557. 
Pugh  V.  State,  2  Head,  327,  §  1414. 
Pugsley  V.   Aiken,  11  N.  Y.   494, 

§  583. 
Pullman  Pal.  C.  Co.  v.   Baker,   4 

Colo.  344,  g  480a. 
Purchase  v.  Mattison,  6  Duer,  587, 

§g  94&,  1009. 
Pursell  V.  Long,  7  Jones  L.  (N.  C.) 

102  S  1225. 
Pursley  ^r  Hays,  23  la.  11,  §§  1160, 

1341. 
Pyer    v.   Carter,   1   H.   &  N.  916, 
§  65a. 

Q. 

Queen,   The,   v.   El  worthy,    1    Ci". 
Cas.  103,  §  1361. 


Quiggin  V.  Duff,  1  M.  &  W.  174, 

§  574. 
Quinn  v.  Hard,  43  Vt.  375,  §  94b. 
Quirk  V.  Thomas,  6  JMich.  76,  §  307. 

R. 

Racldeff  v.  Norton,  19  Me.  874,  §  96. 
Raffcrty  v.   Mallory,   8  Biss.   363, 

§i^  307,  323. 
Raggsdalev.  Hogg,  9  Gratt.   409, 

§  431. 
Ragland    v.    Wynn,    37    Ala.    33, 

§1413. 
Railroad  Co.    v.    Brown,  17  Wall. 
445.  §  1383. 
V.   Harris,  13  Wall.  65,  §  1307. 
V.   Mauuf»  Co.    16  Wall.    318, 
§  533. 
Railroad  Tax    Case,   8    Saw.    338, 

§  1139. 
Railway  Co.  v.  Whitton,   13  Wall, 

384,  §  1307. 
Ralls  V.  Graham.  4  Mon.  120,  §  219. 
Ralston   v.    BuUitts,   3   Bibb,    361, 

§  1017. 
Ramdulollday  x\  Darieux,  4  Wash. 

C.  C.  61,  §  1017. 
Ramsey  v.   Strobach,  53  Ala.  513, 

§  6oi. 
Rancliffe  v.  Parkyns,   6  Dow.  149, 

§§  8,  13. 
Rand  v.  Dodge,  17  N.  H.  343,  §  1231. 

V.  State,  77  N.  C.  175,  §  94a. 
Randall  v.   Falkner,   41  Cal.    343, 
§1161. 
V.  Silverthorne,  4  Pa.  St.  173, 

§§  10,  16,  300. 
V.  Smith,  34  Barb.  453,  §  916. 
Randolph  v.  N.  J.  West  L.  R.  Co. 

38  N.  J.  Eq.  49,  §  97. 
Rankin  v.  Childs,  9  Mo.  673,  §§  395, 
399. 
V.     Dulanev,    43     Miss.     197, 
§§  1374",  1375. 
Ransom  v.  Loyless,  49  Ga.  471,  §  499. 
Ransome    v.    Mack,    3    Hill,    587, 

§§  810.  841,  850.  904,  931. 
Rape  V.  Heaton,  9  Wis.  388,  §§  1371, 

1373,  1405. 
Rapelye    v.    Bailey,   3    Conn.  438, 
§§  389,  401. 
V.  Prince,  4  Hill,  119,  §  480/. 
Raritan     Water     Power     Co.     v. 
Veghte,  31  N.  J.  Eq.  463,  §§  10, 
16,  30. 
Ratcliff  e  v.  Barnard,  L.  R.  6  Ch.  653, 
§§  56,  65a. 


IX  vl 


TABLE   OF   CASES   CITED. 


Rathbiirn  v.  Acker,  18  Barb.  393, 

§  1334. 
Rawson  v.  Holland,  47  How.  Pr. 

293,  §  573. 
Rav  V.  Birclseve,  5  Den,  626,  §  273. 
Ray  r.  Bush,  1  Root,  81,  §  113. 
r.  Roe.  2  Blackf.  258,  gg  347, 

351. 
r.  Smith,  17  Wall.  411,  §§  946, 
948. 
Raymond  v.  Squire,  11  Johns.  47, 

§432. 
Reab  y.  Moor,  19  Johns.  337,  g  1285. 
Read    v.   French,    28    N.    Y.    285, 
§  1338. 
V.  St.  Louis  R.  Co.  60  Mo.  199, 
§  558. 
Reading  v.  Ford,  1  Bibb,  338,  §  1161. 
Real  Estate  Sav.  Inst.  v.  Collonius, 

63  Mo.  290,  §§  339,  342a,  344. 
Reasoner  v.  Edmonson,  5  Ind.  393, 

§101. 
Rector  v.  St.  Louis  C.  Ct.  1  Mo.  607, 

§  1211. 
Redmon  v.  Steamboat  Co.  46  N.  Y. 

583,  >^  564. 
Redpath  v.   Roberts,   3    Esp.   225, 

§644.   ■ 
Reed  v.  Allison.  61  Cal.  461,  ?;  1218. 
V.  Coale,  4  Ind.  283,  t^  119. 
V.  Gannon,  50  N.  Y.  345,  J^g  16, 

65a,  299. 
V.  Hawlev.  45  111.  40,  g  036. 
V.  Kemp,' 16  111.  445,  ?:?;  127,  128. 
V.  Marblev,  10  Paige,  409,  g  431. 
V.  Northfield,      13     Pick.  '  94, 

§  480gr. 
V.  Ownby,  44  Mo.  204.  §  96. 
V.  Trentman,  53  Ind.  438,  §946. 
V.  Tyler,  56  lU.  288,  §  1376. 
V.  Wilson,    41    N.    J.     L.    29, 
§  1404. 
Reeder  v.  Barr,  4  Ohio,  446,  §  311. 
V.  Holcomb,     105     Mass.     93, 

§    1358; 

Reed's  Appeal,  34  Pa.  St.  207,  §672. 
Reese  v.  Beck,  24  Ala.  651,  §  1248. 
Reeves  v.  Avers,  38  Ul.  418,  §  273. 
V.  Kimball,  40  N.  Y.  299,  §  431. 
Reg.  V.  St.  Maurice,  16  Q.  B.  908, 
§  1410. 
V.  Whittles,     13     Q.    B.     248, 
§  1410. 
Reggio  V.  Braggiotti,  7  Cush.   166, 

§  2S01. 
Regina  v.  Hankins,  2  Carr.  &  Kir. 

822,  §  1286. 
Reichert  v.   McClure,  33  HI.   516, 
§234. 


Reid    V.    Payne,    16    Johns.    218, 

§§  883,  922. 
Reigait  i\  White,  52  Pa.  St.  438, 

§421. 
Reilley  v.   Smith,  16  La.  An.   31, 

§  506. 
Relfe  V.  Valentine,    45    Ala.   286, 

§  1154. 
Remor  v.  Downer,  23  Wend,  620, 

g§  842,  883. 
Reufro  v.   Harrison,   10    Mo.   411, 

§  143a. 
Renner  v.   Bank  of    Columbia,   9 

Wheat.  582,  §  480o. 
Reno  V.  Hogan.  12  B.  Mon.  63,  §  558. 
Rensliaw  v.  Triplett,  23  Mo.  213, 

§§  707,  717. 
Requa  v.  City  of  Rochester,  45  N. 
Y.    129;    6  Am,   Rep.   52, 
§  480flr. 
V.  CoUins,  51  N.  Y.  144,  §  922. 
Rex  V.  Haworth,  4  Cai-r.  &  P,  254, 
§  1261. 
V.  Holland,  5  T.  R.  607,  §  1387. 
V.   Huggins,   Ld.   Ravm.  1583, 
§  480;. 
Rey  V.  Simpson,  22  How.  241,  §  87. 
Revnolds  i:  Appleman,  41  Md.  615, 
§  84U. 
V.  B.  &  M.  R.  43  N.  H.  580, 

§g  466,  480. 
V.  Harris,  14  Cal.  667,  §  1096. 
V.  Kenyon,  43  Barb.  585,  §  6836. 
V.  Kingsbury,  15  la.  238,  g§  112, 

125. 
r.  Raih-oad,  43  N.  H.  580,  §  457. 
V.  Ruckman,  35  Mich.  80,  §§  10, 

26,  29.  64. 
V.  WUson,  15  111.  394,  §  1088, 
Rhett  V.  Poe,  2  How.  457,  §  732. 
Rhoades  v.  Delaney,  50  Ind.  468, 
§  1358. 
V.  Selin,  4  Wash.  C.  Ct,  715, 
§  1278, 
Rhode  V.  Proctor,  4  B.  &  C.   517, 

§§  771,  991. 
Rhodes  v.  Cooke,  4  L.  J.  Ch.  147, 
§29. 
V.  L.  &  N.  R.  Co.  9  Bush,  688, 
§558. 
Rhopho,  etc.  Township  v.  Moore, 

68  Pa.  St.  404,  §  480sr. 
Rice  i\  Bost.  &  Worcester  R.  Corp. 
98  Mass.  212,  §  567. 
V.  K.  P.  R'y,  63  Mo.  314,  §  4806. 
V.     Montgomery,    4    Biss.    75, 

§  1410. 
V.  Rice,  2  Drew,  73,  §§  50,  297, 
299. 


TABLE    OF    CASES    CITED, 


Ixvii 


Rich  V.  Roberts,  48  Me.  548,  §  194. 

V.  Staibuck,  45Ind.  310.  g  1220. 

Richards    v.    Daily,    34    la.    427, 

S  431. 

V.  Griggs,  16  Mo.  416,  g§  434, 

440. 
V.  Hicks,  1  Overton.  207.  g  1405. 
V.  M.  S.  &  N.  etc.  R.  Co.  20  lU. 
404,  g  noG. 
Richardson  v.  B.  it  :\r..  R.  Co.  8  la. 
260,  S  1235. 
V.  Goddard.  23  Uow.  44,  j;  480n.. 
V.  White.  18  Cal.  102,  t,  374. 
V.  Wicker.  74  N.  C.  278.  §  228. 
Richmond,  The.  1  Biss.  49.  ij  575. 
Rider  v.  Johnson,  20  Pa.  8t.  190, 

§  431. 
Riddle  v.  Coburn,  8  Gray,  241.  g  72. 
V.  Mandeville,   5   Cranch,   322, 
§  706. 
Ridgewav  v.  HoUidav,  59  Mo.  444, 

§§307. '316. 
Ridgley  v.   Stillwell.   25  Mo.  570. 

§  613. 
Riggs  V.  Boylan,  4  Biss.  445,  §  153. 
Right  V.  Beard,  13  East,  210,  g  593. 
V.  Cuthell,  5  East,  491.  §g  616, 

698,  700. 
V.  Darby,  1  T.  R.  159,  §  607. 
Righter  v.  Forrester.  1  Bush,  278, 

§§  232,  266. 
Rigs  V.   Cage,   2  Humph.   (Tenn.) 

350,  §671. 
Rigsbee  v.   Bowler,    17    Ind.    167, 

§1159. 
Riley  v.  Home,  5  Biug.  217.  §§  542, 
558. 
V.  Nichols,  1  Heisk.  (Tenn.)  16, 
§§  1036,  1037. 
Ring  V.  Steele,  3  Keyes,  450,  §§  203, 

231a. 
Ringgold  V.   Bryan,  3  Md.  Ch.  D. 
488,  §§  60,  273. 
V.  Waggoner,  14  Ai-k.  69,  §§  10, 
25. 
Ringold  V.  Patterson,  15  Ark.  209, 

§  1091. 
Ripple  V.  Ripple,  1  Rawle,  386,  §  28. 
Rising  V.   Stannard,   17  Mass.  282, 

§608. 
Rislev,  Succession  of,  11  Rob.  (La.) 

298.  §  432. 
Ritter  v.  OlTutt,  40  Md.  207,  §  1157. 
Rivers    v.    Walker,     1     Dall.     85, 

§  1321. 
Roach  r.  Barnes,  33  Mo.  319,  §  1141. 

V.  Karr,  18  Kan.  529,  §  674. 
Robards  v.   Marley,    80  Ind.    185, 
§  1405. 
e 


Robb    V.    Mudge,    14    Gray,    534, 
§499. 
V.  Starkey,  2  Carr.  &  Kir.  143, 
§  1270. 
Roberts  r.  Anderson,  3  Johns.  Cli. 
371,  §8. 
V.  Bourne,  23  Me.  165,  §§  205, 

206. 
V.  Croft,  2  De  G.  &  J.  1,  §  56. 
V.  Eden,  1  Bos.  &  P.  398,  §  94a. 
V.  Moslev,  64  Mo.    507,  §§  16, 

25,  673a. 
V.  Riley,  15  La.  An.  103,  §  553. 
V.  Stanton,  2  Munf.  129,  t^  27. 
r.  Taft,  120  Mass.   169,  §§  887, 
902. 
Robertson  v.  Williamson,  5  Munf. 

331,  §  946. 
Robins  v.   Gibson,    3    Camp.   334, 

§  1005. 
Robinson,   Estate  of,  0  Mich.  137, 

§  1363. 
Robinson  r.  Bartlett,  11  Minn.  410, 
§87. 
V.  Chittenden,    14  N.  Y.  Sup. 

Ct.  133,  §  563. 
V.  Int.  Life  As.  Soc.  42  N.  Y. 

54,  §  748. 
V.  Williams,  22  N.  Y.  380,  §  180. 
V.    Willoughby,    7   N.    C.    358, 
§  231a. 
Robison  v.   Goswold,   6  Mod.  171, 

§671. 
Robson  V.   Bennett,  2  Taunt.  388, 
§817. 
r.  Flight,  4  De  G.  J.  &  S.  608, 
§307. 
Rochfort  r.  Robertson,  12  East,  427, 

§  1181. 
Rockendorff  v.  Taylor's  Lessee,   4 

Pet.  349.  §§  1102,'lll6. 
Rockwell  r.    Bradley,   2  Conn.  1, 

§  600. 
Roddy  V.  WiUiams,  3  Jones  &  L.  1, 

§§  15,  313. 
Rodgers  v.  Kayanaugh,  24  III.  583, 

§176. 
Rodick  V.   GandeU,  1  De  G.  M.  & 

G.  763,  §  430. 
Roe  r.  Pierce,  2  Camp.  96,  §§  622, 

698,  699,  700. 
Rogers,  Ex  parte,  8  De  G.  M.  &  G. 

27,  §  437. 
Rogers  ?•.   Biurchard,  34  Tex.  441, 
§§  205,  207. 
V.  Custance,  2  Mood.  &  R.  179, 

§  1282. 
V.  Hackett,  21  N.  H.  100,  §  967, 
V.  Hoskins,  14  Ga.  166,  §  7. 


iXVlll 


TABLE   OF   CASES    CITED. 


Rogers  v.  Hussey,  36  la.  G64,  §  277. 
V.  Jones,  8  N.  H.  204,  *;§  15,  35, 

273,  279,  268,  29-4,  313. 
V.  McElIione,  12  Abb.  Pr.  392, 

ti  1201. 
V.  Mutton,  7  Hurl.  &  N.   733, 

5^  1393. 
V.  State,  50  Ala.  102,  §§  1414, 

1415. 
V.  Stephens,  2  T.  R.  713,  §  1001. 
r.  West,  9  Inrl.  400,  ^  532. 
V.  Wiley,  14  111.  G5,  {^  35. 
Rogerson  v.  Hare,  W.  W.  &  D.  65, 

tj  718. 
Rollantl  V.  Hart,  L.  R.   6  Ch.  678, 

^j^  56,  672,  689,  690. 
Rome  R.  R.  v.  SulUvan,  14  Ga.  277. 

^5^  571,  574. 
Rood  V.  Chapin,  Walk.  Ch.  79,  §  96. 
Rorke,  In  re,  13  Ir.  Ch.  R.  273 ;  14 

Ir.  Ch.  442.  g  690. 
Rose  V.  Lewis,  10  Mich.  483,  §  1263. 

V.  Railroad,  39  la.  246,  §  558. 
Rosher  r.    Kieran,   3    Camp.    87, 

§  710. 
Ross  V.  Anstell,  2  Cal.  183.  g  1411. 
?-.  Bedell,  5  Duer,  462.  §  997. 
r.  Boswell,  60  Ind.  235,  J<  1415. 
r.  Bruce,  1  Day,  100,  i^  1263. 
V.  Worthington,  11  Minn.  438. 
Rosseau  v.  Gayarre,  24  La.  An.  355, 

§  1346. 
Rossiter  v.  Rossiter,  8  Wend.   494, 

§657. 
Rothschilds  v.  M.  C.  R.  Co.  69  111. 

164.  §  566. 
Rotschild   V.    Grix,   31   Mich.    150. 

§  87. 
Rounds  V.  McChesney,  7  Cow.  360, 

§97. 
Routh  V.   Robertson,  11  Sm.  &  M. 
382,  §  840. 
V.  Spencer,  38  Ind.  393,  §  97. 
Rowan  v.  Adams.  1  Sm.  &  M.  Ch. 
45,  §  27. 
r.  Lytle,  11  Wend.  616.  §  596. 
■  Rowe  V.  Tipper.  20  Eng.   L.  &  Eq. 
220,  §§  795,  797. 
Rowell  V.  Klein,  44  Ind.  290,  ^  1378. 
Rowley  v.  Bigelow,  12  Pick.  307, 
§463. 
V.  Horne,  3  Bing.  2.  §  546. 
V.  Howard,  23  Cal.  401,  §  1362. 
Rowls  V.  Desliler,  4  Abb.  App.  Dec. 

12,  §  472. 
Rucker  v.  Donovan,  13  Kan.  251, 

r.  Hillei-rie  East,  43,  §  1004. 
Rudy  V.  Wolf,  16  S.  &  R.  79,  §  421. 


Rugely  IK  Davidson,  2  Mills'  Const. 

R.  33,  §  7:59. 
Runkle  v.  Hagan,  3  Mo.  234,  §  1211. 
Runquist  v.   DitcheU,   3    Esp.  64, 

§  654. 
Runvan  v.  McClellan,  24  Ind.  165, 

§  240. 
Runyon  v.  Montfort,  Busb.  (N.  C.) 

371,  §  906. 
Rupert"  V.   JIark,  15  111.  540,  §§  7, 

217,  294,  307. 
Rushim  v.  Shields,  11  Ga.  636,  §  225. 
Rushton  V.  Aspinwall,  1  Doug.  653, 

§  1401. 
Russell  V.  Buck.  11  Vt.  166,  §  394. 
V.  Clark,  7  Cranch,  09,  §§  386, 

389. 
V.  Dver,  40  N.  H.  173,  §  1097. 
V.  Hoyt,  4  Mont.  412,  §  1410. 
V.  Longstafife,    1     Doug.     495, 

^  991. 
V.  Martin,  15  Tex.  238,  §  1410. 
V.  Perkins,  1  Mason,  368,  §§  389, 

401. 
I'.  Petree.  10  B.  Mon.  184,  §§  17, 

3G. 
V.    Sargent,    7    Bl.     App.    98, 

i^  1412. 
V.  Sweezey,  22  Mich.  235,  g§  65a, 
672.  674. 
Russell  M't'g  Co.  v.  Steamboat  Co. 

50  N.  Y.  121,  §§  564,  577a. 
Russell's   Appeal,    15  Pa.   St.  319. 

§  113. 
Rutherford  v.  Geddes,  4  Wall.  220, 

§  1249. 
Rutland  Bank  r.  Buck,  5  Wend.  66, 

§  946. 
Rutledge  r.  Sup.  Ct.  (Cal.)  6  W. 

Coast  Rep.  565,  §  1211. 
Rutter  V.  Barr,  4  Ohio,  446,  §  15. 
Ryall  V.  Rowles,  1  Ves.  Sen.  348, 

§  433. 
Ryan  v.  Driscoll,  83  111.  415,  §  1161. 
Rvland    v.    Brown,   2    Head,   270, 
§  92a. 

s. 

Saco  National  Bank  v.  Sanborn,  63 

Me.  340,  §  923. 
Sackett  V.  Kellar,  22  Ohio  St.  554, 

§  94«. 
Saffron,  etc.  Soc.  v.  Rayner,  L.  R. 

14  Ch.  D.  406,  §§  433,  672. 
Sagerr.  P.  S.   etc.  R.  Co.  31  Me. 

228.  §  558. 
Sailor  v.   Hertzog,  4  Wliart.  259, 

§278. 


TABLE    OF    CASES    CITED. 


Ixix 


Salisbury  v.   Morse,   7  Lans,    359, 

V.  Renick,  44  Mo.  554,  §  956. 
V.  Sands,  2  DiU.  270,  g  1352. 
Sallee  v.  Hays,  3  Mo.  IIG,  §  1084. 
Saltus  V.  Everett,  20  AVend.    267, 

§67. 
Sample    v.    Martin-.    16    Ind.    226, 

gj;  420,  422. 
Sanij-ison  v.  Ohleyer,  22  Cal.  200, 

§  371. 
Samuels  r.    Slielton,   48  Mo.    444, 

§  348. 
Sanborn  v.    Little,    3    N.    H.    539, 
I^S  79,  431. 
V.    Robinson.    54    N.    H.    239, 
§  310. 
Sandford  v.  Handy,  23  Wend.  260, 

§  653. 
Sandilands  v.  Marsh,  2  B.  &  Aid. 

673,  §  527. 
Sanford  v.   Harvey,   11   Cush.  93, 

§  633. 
Sanger    i\    Craigue,    10    Vt.    555, 

^§  159,  174. 
Sarahass  v.   Armstrong,    16   Kan. 

192,  §  1408. 
Sargent    v.    Bean,    7    Gray.    125, 

§  1110. 
Sargeant  v.  Ingersoll,  7  Pa.  St.  340, 
g  279. 
V.  State  Banlv  of  Indiana,   12 
How.  371,  §  1085. 
Saunders  v.  Deliew,  2   Vern.  271, 
§^  48,  58. 
V.  Smith,  3  Ga.  121,  §  1190. 
Savings,  etc.  Soc.  v.  Thompson,  32 

Cal.  347.  ^  1071. 
Sawyer  v.  Adams,  8  Vt.  172,  §  160. 
V.  Brownell,  13  R.  I.  141,  ^  738. 
V.  Joslin,  20  Vt.  172,  g  464. 
V.  North  Am.  Life  Iiis.  Co.  46 
Vt.  697,  g  1304. 
Sawyer's    v.     Pawner's    Banlv,    6 

Allen,  207,  §  683rt. 
Sayer  v.   Frick,   7   W.    &  S.  383, 

§757. 
Sayles    r.    Davis,     20    AVis.    303, 

§  1372. 
Scales  V.  Alxis,  12  Ala.  617,  §  1111. 

V.  Wilsey,  11  la.  261,  §  97. 
Scarboroitgh  v.  HoitIs,  1  I3av,  177, 

§  1017. 
Scarlett  v.   Gorliam.   2S    111.    319, 

§§  360.  308. 
Schell  V.  Leland,  45  Mo.  289,  §  1032. 
V.  Stein,  76  Pa.  St.   398,' §  164. 
Schepp  V.  Cai-penter,  51  N.  Y.  602, 
§94&. 


Schimmelpenich  v.  Bayard,  1  Pet. 

264,  ^g  660.  661. 
Schlater  v.  Winpenny,  75  Pa.  St. 

321,  §  523. 
Schley  v.  Merrit,  37  Md.  352,  §  87. 
Schnell    v.    Chicago,    38    111.    382, 

§  1075. 
Schollenberger,  Ex  parte,  6  Rep.  5, 

§  1307. 
Schonberg  v.  Cherry,  6  Thomp.  & 
C.  (N.  Y.)  200;  S.  C.  3  Hun,  677, 
§  382. 
School  District  v.  Taylor,  19  Kan. 
287,  §§  65a,  96,  273,  278. 
V.    Railroad,    102     Mass.    553, 
§  558. 
Schuchardt  v.   Hall,   36  Md.   590, 

§  1004. 
Schultz  V.  Jloore,  1   McLean,  520, 

§  124. 
Schutt  V.  Large,  6  Barb.  373,  §§  63, 

96,  11.3,  203. 
Schuvler  v.  Leggett,  3  Cow.  660, 
§  586. 
r.  Smith,  51  N.  Y.  309,  §  603. 
Schwabackev  v.  Reill}^  3  Dill.  137, 

§  1295. 
Scofield  V.  Eichelberger,  7  Pet.  586, 

§  981. 
Scorpion  S.  M.  Co.  v.  Marsano,  10 

Nev.  370,  gg  1030,  1309,  1355. 
Scott  V.  Bullion  M.  Co.  3  Nev.  81, 
§  1249. 
V.  Cohnan,  5  Monr.  73,  §  377. 
V.  Colmesnil,  7  J.  J.  Marsh.  416, 

§  493. 
V.  Dunbar,  1  MoU.  443,  §  50. 
V.  Edwards,  19  Mo.  674,  §  1414. 
V.  Gallagher,  14  S.  &  R.  333, 

§.^  294,  299,  300. 
V.  Greer,  10  Pa.  St.  103,  §  943. 
V.   Jackson,    13  La.    An.    640, 

§  1413. 
V.  Jackson,    35  La.   An.    769, 

§  1414. 
V.  Jones,  4  Taunt.  865,  §  1263. 
V.  Lifford,  9  East,  347,  g§  716, 

735. 
V.   Lord  Hastings,   4  K.  &  J. 

633,  §  434. 
V.  Scott.    17  Md.  78,   §§  1251, 

1414. 
V.     Whitney,     41     Wis.      504, 
§  480?i. 
Scroggins    v.    Dugal,    8  Ala.   383, 

§  65rt. 
Scuddar  v.  Van  Amburgh,  4  Edw. 

Ch.  29,  §  371. 
Scull  V.  Mason,  43  Pa.  St.  99,  §  936. 


Ixx 


TABLE   OF   CASES    CITED. 


Scully  V.  ^.lun-av.  34  Mo.  420,  §013. 
Seabrook    v.   Brady,    47    Ga.    650, 

§J5  339,  34-3a. 
Seaburv  v.  Hungerford,  2  Hill,  80, 

§  1024. 
Seacord    v.   Miller,    13  N.   Y.   55, 

§946. 
Sears  v.  Munson,  23  la.  380,  §§  65a, 
273. 
V.  Van  Dusen,  25  Mich,  351, 
§417. 
Seaton  v.  Scoville,   18    Kan.   435, 

§735. 
Seaver  v.  Fitzgerald,  23  Cal.   85, 

§  1039. 
Secomb  v.  Nutt,  14  B.  Mon.  324, 

§464. 
Sedgwick  v.   Cleveland,   7   Paige, 

287,  §  341. 
Self  V.  Maddox,  1  Vern.  459,  §  348. 
Selking  v.  Hebel,  1  Mo.  App.  340, 

§113. 
Selway  v.  Hallo wav,  1  Ld.  Raym. 

46,  §  532. 
Semple    v.    Hagar,     27    Cal.    163, 

§  1404. 

Senter  v.  Turner,  10  la.  517,  §  96. 

Sergeant  v.  IngersoU,  7  Pa.  St.  340 ; 

15  Pa.  St.  343,  §§  10,  18,  279,  328. 

Sessions  v.  West.  R.  Corp.  16  Gray, 

132,  §  567. 
Setter  v.  Alvey,  15  Kan.  157,  §  226. 
Sexton    V.    Rhames,    13  Wis.   99, 

§§  1031,  1119. 
Seybell  v.  National  Cur.  Bank,  54 

N.  Y.  288,  tjg  80,  89. 
Seymour  v.  Newton,  105  Mass.  272, 

§§  464,  477. 
Shackelton  v.  Sutcliffe,  1  De  G.  & 

Sm.  609,  §  65a. 
Shade  v.  Payne,  14  La.  An.  453, 

§576. 
Shannon  v.  Hall,  72  111.  354,  §§  152, 

153. 
Shai-p  V.  Arbutlinot,  13  Jur.  219, 
§80. 
V.  Bailev,  9  B.  &  C.  44,  §  997. 
V.  Lumley,  34  Cal.  611,  t^  374. 
V.  Maguire,  19  Cal.  577,  §  348. 
Sharpe  v.  Kelley,  5  Den.  431,  §  598. 
Shaw  V.  Neal,  19  La.  156,  §  984. 
V.  Padlev,  64  Mo.  519,  §  348. 
V.  Poor,  6  Pick.  86,  §  129. 
V.  Railroad  Co.   101  U.  S.  557, 

§80. 
V.  State.  3  Sneed,  86,  §  1407. 
V.  Wilshire,  65  Me.  485,  §  189. 
Shawhan    v.   Laflfen,   24    la.    217, 
§§  1160,  1161. 


Shaylor  r.  Mix,  4  Allen,  351,  §S  830, 

850. 
Shedt'.  Brett,  1  Pick.  401,  SS781, 

882. 
Sheets  v.  Andrews,  2  Blackf.  274, 

§  480c. 
Shelburne  Falls  Bank  v.  Townslev, 

107  Mass.  444,  ^§  843,  846. 
Shelbui-ne  Falls  National  Bank  v. 

Townslev.  102  Mass.  177,  §  910. 
Shelby  v.  Judd,  24  Kan.  161,  §  738. 
Sheldon  v.    Benham,   4  Hill,  129, 
§  846. 
V.   Chapman,   31    N.    Y.    644, 

§  940. 
V.  Cox.  2  Edm.  224,  §§  15,  672. 
V.  Wriglit,  5  N.  Y.  497 ;  7  Barb. 
39,  §§  1077,  1160. 
Shelton  v.  Johnson,  4  Sneed,  672, 
§  371. 
V.  Itlerchants'  D.  T.  Co.  59  N. 
Y.  258,  §  557. 
Shenck  v.  Propeller  Co.  60  Pa.  St. 

109,  §  566. 
Shepai-d  r.  Giddings,  22  Conn.  282, 
§  1272. 
V.  Hawley,  1  Conn.  369,  §  758. 
V.  Shepard,  36  Mich.  173,  §§  29, 
185. 
Shepardson  v.  Stevens,  71  111.  646, 

§g  10,  65a,  279. 
Sherfy  v.  Argenbright,  1  Heisk.  128, 

§  146. 
Sheridan  v.  Andrews,  49  N.  Y.  478, 

§374. 
Shields  v.  Mitchell,  10  Yerg.  8,  §  96. 
Sliimmin  v.   Inman,   26    Me.   228, 

§  1110. 
Ship  Grafton,  The,  Olcott's  R.  43, 

§563. 

Shu-lev  V.  Fellow,  9  Port.  (Ala.)  300, 

§  1003. 

V.  Hagar,  3  Blatchf.  225,  §  1159. 

Shirras  v.  Caig,  7  Cranch,  34,  §  272. 

Shoemaker  v.  Mech.  Bank,  59  Pa. 

St.  79,  §  870. 
Shotwell  V.  Harrison,  30  Mich.  179, 
§§11,  270. 
V.  Rowell,  30  Ga.  557,  §  1185. 
Shove  r.  Larsen,  22  Wis.  142,  §  169. 
Shreve  v.  Dulany,  1  Cranch,  C.  Ct. 

499,  §  1286. 
Shults  V.   Moore,   1  McLean,  520, 

§  124. 
Shultz  V.  Depuy,  3  Abb.  Pr.  252, 

§§  1387,  1397. 
Shumate  v.  Reavis,  49  Mo.  333,§  273. 
Shurlds  V.  Tilson,  2  McLean,  458, 
§§  504,  506. 


TABLE    OF    CASES    CITED. 


Lxxi 


Sibley  v.  LeffingweU,  8  AUen,  584, 
§^  14,  274. 
V.  Muskegan  N.   B.  41   Mich. 
196,  §  87. 
Sidwell  V.  Worthington,  8  Dana,  74, 

§348. 
Sigerson  v.  Mathews,  20  How.  496, 

§964. 
Sigoiivney  v.  Munn,  7  Conn.  324, 

§§  26,  320. 
Sllsby  V.  Allen,  43  Vt.  172,  §  586. 
Simcock  i\  First  National  Bank  of 

Emporia,  14  Kan.  529,  §  1358. 
Siniingtou    v.    Kent,   8    Ala.    691, 

§§  1282,  1290. 
Simms  i\  Southern  Ex.  Co.  38  Ga. 

129,  §  1405. 
Simon  v.  The  Fung  Shuey,  21  La. 

An.  363,  §  553. 
Simonds  t\    Strong,    24    Vt.    642, 

§504. 
Simons  v.   Gardner.   6  R.   I.    255, 
§  1336. 
V.  Great  \V.  R.  Co.  87  Eng.  L. 
&  Eq.  286,  §  561. 
Simpson  t\  Burch.  6  Thomp.   &  C. 
560 ;  4  Hun,  315,  §  1038. 
V.  Knight,  3  Kan.  172,  §  128. 
V.  Kniglit,  12  Fla.  144,  §§  1138, 

1144. 

V.  Mundee,  3   Kan.    172,  §  128. 

V.  Terney,  5  Humph.  419,  §  799. 

Simsr.  Hammond,  33  la.  368,  §§  203, 

231o. 

V.  Marryatt,  17  Q.  B.  281,  §  1404. 

Sinclair  r.  Stevenson.  1  Carr.  &  P. 

582,  §  1277. 
Siter  V.  McClanachan,  2  Gratt.  280, 

§113. 
Skiff  en  v.  Wray,  6  East,  371,  §  479. 
Skilding  v.  Warren,  15  Johns.  270, 

§92a. 
Slater  v.  Breese,  36  Mich.  77,  §  185. 
Sleat  V.  Fagg,  5  B.  &  Aid.  342, 

§558. 
Sleeper  v.  Chapman,  121  Mass.  404, 

§322. 
Slim  V.  Croucher,  1  De  G.  F.  &  J. 

518,  §§  7,  35. 
Slocomb  V.  Lizardi,  21  La.  An.  355, 
§§  751,  752. 
V.  Powers,  10  R.  I.  255.  §  1156. 
Small  V.  Browder,  11  B.  Mon.  212, 
§  432. 
V.  Smith,  1  Den.  583,  §  94a. 
Smalley  v.  Wright,  40  N.  J.  L.  471, 

§764. 
Smedes  v.  Utica  Bank,  20  Johns. 
371,  §§  714,  786,  829,  846. 


Smith  V.  Anthony,  5  Mo.  504,  §§  395, 

399. 
V.   Bainbridge,   6    Blackf.    12, 

§  416, 
V.  Beckett,  13  East,  187,  §  99L 
V.   Branch  Bank,  21  Ala.  125, 

§96. 
V.  Brown,  9  Leigh,  293,  §§  367, 

373 
V.  Capron,  7  Hare,  191,  §§  46, 

321. 
V.  Compton,  3  B.   &  Ad.  407, 

§  480?. 
V.  Curlee,  59  El.  221,  §  956. 
V.  DaU,  13  Cal.  510,  §  281. 
V.  Denton.  42  la.  48,  §§  48,  316, 

672,  674. 
V.  Gibson,  15  Minn.  89,  §§  96, 

277,  279,  373. 
V.  Home,  8  Taunt.  144,  §  558. 
V.  Ide.  3  Vt.  290,  §§  386,  401. 
V.  Little.  10  N.  H.526,  §  781. 
V.   Littlefield,    51    N.   Y.    539, 

§596. 
V.    Lockridge,    8    Bush,    423, 

t<936. 
V.  Mullet,  2  Camp.   208,  §  803. 
V.  Nashua,  etc.  R.  Co.  27  N.  H. 

86,  §§  570,  571,  574. 
V.     Pattison,     45    Miss.     619, 

§  1384. 
V.  Railroad,  64  N.  C.  235,  §  553. 
V.  Randall,  6  Cal.  47,  §  1096. 
V.  Reese  R.  Co.  L.  R.  2  Eq.  264, 

§§  10,  35. 
V.  Roach,  7  B.  Mon.  17,  §  798. 
V.  Shane,  1  McLean,  22,  §  44. 
V.  Sparrow,  4  Bing.  84,  §  677. 
V.  Smith,  13  Ohio  St.  532,  §  225. 
V.  Smith,  2    Cr.  &   M.    Exch. 

231,  §  439. 
V.  Stewart,  6  Johns.   46,  §  593. 
V.  Tallapoosa  Co.  2  Woods,  574, 

§  1404. 
V.  Thatcher,  4  B.  &  Aid.  200, 

§744. 
V.  Trabue,  1  McLean.  87,  §  343. 
V.  Water  Com'rs,  38  Conn.  208, 

§§  683,  683b. 
V.  Wells"  Adm'rs,  4Bush  (Kv.), 

92,  §  1197. 
V.  Whiting,  12  Mass.  6,  §§  480o, 

839. 
V.  Yule,  31  Cal.  180,  §§  96,  280, 

289,  297. 
Smith's  Appeal,   47    Pa.    St.    128, 

§688. 
Smout  V.   Ilbery,   10  M.  &  W.  1, 
§671. 


Ixxii 


TABLE    OF    CASES    CITED. 


Snee  v.  Prescot,  1  Atk.  245,  §  477. 
Snider  v.  Adams  Ex.  Co.   63  Mo. 
376,  J<  o53. 
V.  Snider,  3  Phila.  160,  §  228. 
SnodRrass  v.  Bicketts,  13  Cal.  360, 

§96. 
Snow  V.  Perry,  9  Pick.  542.  §  660. 
Snydackcr   v.  Brosse,  51   lU.   357, 

45  1296. 
Snvder  v.   Sponable,   1   Hill,   567, 

^\^  680,  684. 
Soeding  v.     Bartlett,    35    Mo.   90, 

§  1399. 
Solomon  v.  Hughes,  24  Kan,  211, 
§  1409. 
V.  S.  B.  Co.  2  Daly  (N.  Y.),  104, 
§  577a. 
Solyer  v.   Romanet,   52  Tex.   562, 

§  1410. 
Somers  v.   Schmidt,  24  Wis.  417; 

1  Am.  Rep.  191,  i<j5  480rZ,  480/. 
Somes  V.  Brewer,  2  Pick.  184,  §  241. 
V.  Skiimer,  3  Pick.  52,  g§  214, 
216. 
Sorrel  v.  Carpenter,  2  P.  Wms.  482, 

§§  338,  348. 
Souder  v.  Morrow,  33  Pa.  St.   83, 

§208. 
Soule  V.  Chase,  1  Rob.  (N.  Y.)  222, 

§g  1061,  1087,  1078,  1080. 
South,    etc.  R.   Co.  ?'.  Henlein,  52 

Ala.  486,  §  558. 
Southard  v.  McBrown,  63  Cal.  545, 

§430. 
Southern  v.  Grim,  67  111.  106,  §  515. 
Southern  Ex.  Co.  v.  Moon,  39  Miss. 

822,  §  553. 
Southern,  etc.  R.  Co.  v.  PUgreen, 

62  Ala.  305,  §  1417. 
Southern  &  Atlantic  Tel.    Co.   v. 

N.  O.  etc.  R.  Co.  2  Cent.  L.  J.  88, 

§g  1306,  1308. 
Southwestern  R'y  v.  Felder,  46  Ga. 

433,  §  566. 
Southwick  V.  McGoveru,  28  la.  533, 

§515. 
Sowards  v.   Pritchett,  37  111.  517, 

§  1104. 
Spadan    v.    Manvel,   2  Daly,  263, 

§674. 
Spade  V.  Hudson  R'y,  16  Barb.  383, 

§  532. 
Spader    v.    Lawler,    17  Ohio,  371, 

§  225. 
Spain  V.  Hamilton's  Ex'rs,  1  Wall. 

604,  §  436. 
Spalding  v.  Butts,  6  Conn.  28,  §  348. 
V.  Chicago,  etc.  R.  Co.  30  Wis. 
110,  §  480A:. 


Spalding  v.  Krutz,  1  Dill.  C.  C.  414, 

§823. 
Spaulding  v.  Ludlow,  etc.  Mills,  36 

Vt.  150,  §  1245. 
Spear  v.  Ditty,  9  Vt.  282,  §  1107.      • 
Speck  V.  Rigi,'in,  40  Mo.  405,  §  16. 
Specht  V.    Detroit,   20  Mich.    168, 

§  1127. 
Speer  v.  Bishop,  24  Ohio  St.  598, 
§  520. 
V.  Evans,  47  Pa.  St.  141,  §  164. 
Spencer  v.   Ballon,  18  N.  Y.  331, 
§g  94b,  225. 
V.  Bank  of  SaUna,  3  Hill,  520, 

§917. 
V.  Hall,  1  East,  688,  §  1181. 
V.  Harvev,  17  Wend.  489,  §  946. 
V.  AVilsoii,  4  Munf.  130,  §  671. 
Spiers  v.   Halstead,  71  N.  C.  209, 

§1034. 
Spofford  V.   Weston,   29  Me.   140, 

§g  30,  245,  277. 
Sjjooner  r.  Gardiner,  Ry.  &  Mood. 
84,  §  1012. 
V.  Thompson,  48  Vt.  259,  §  664. 
Sprague  i\  Quinn,  108  Mass.  553, 
§  585. 
V.  Tvson,  44  Ala.  338,  §  918. 
Sprowle  V.  Lawrence,  33  Ala.  674, 

§  1415. 
Spunner  v.  Walsh,  10  Ir.  Eq.  386, 

§46. 
Spurgin  v.  McPheeters,  43  Ind.  527, 

§94a. 
Spurlock  V.  Sullivan,  36  Tex,  511, 
§25. 
V.  Union  Bank,  4  Humph.  336, 
§957. 
St.  Andrews  v.  Lockwood,  2  Root, 

239,  §  113, 
St,   John  V.   Conger,  40  111.    535, 
^'^  192   205. 
V.  Roberts',  31  K  Y,  441.  §  740. 
Stafford  v.  Ballou,  17  Vt.  329,  §  10. 
V.  Low,  16  Johns.  67,  §  393. 
V.  Yates,  18  Johns.  327,  §§  706, 
707. 
Stainback  v.  Bank  of  Virginia,  11 

Gratt.  269,  §  657. 
Stainor  r.  Tysen,  3  HUl  (N,  Y.), 

279,  g  660. 
Stanley  v.  Chamberlain,  31  N.  J. 

L.  565,  §§  31,  673a, 
Stausell  V.  Roberts,  13  Ohio,  148, 

§g  225,  231a. 
Stanton  v.  Blossom,  14  Mass.  116, 

§§  705,  707,  1027. 
Staples    V.    Fenton,    5    Hun,    172, 
§  297. 


TABLE   OF    CASES    CITED. 


Ixxiii 


Staples  V.  Okines,  3  Esp.  332,  §  1000. 
Starkweather  v.  Morgan,  15  Kan. 

274,  §  laso. 
State  V.  Bailev,  16  Ind.  46,  g  1404. 
V.  Baird,  9  Kan.  60,  ^  1210. 
V.  Bassett,  33  N.  J.  L.  26,  §  1254. 
V.  Brandon,  6  Kan.  243,  §  1210. 
V.  Cumberland,     7     R.    I.    75, 

8  480(7. 
V.  Edwards,  19  Mo.  674,  §  1414. 
V.  Fii-st  National  Bank,  4  Nev. 

358,  4^,:<  1202,  1329. 
V.  Gurnee,  14  Kan.  111.  §  1260. 
V.  H.  &  St.  J.  R.  Co.  51  Mo. 

532,  S  1311. 
V.  Haves,"  78  Mo.  307,  g  1416. 
V.  Hindunan,  27  Pa.   St.   479, 

g  1405. 
V.  Intoxicating  Liq.  73  Me.  278, 

§  1417. 
V.  Jack.son,  39  Me.  291,  g  1410. 
V.  Jackson,    35    La.    An.    769, 

g  1414. 
V.  Jarrett,  17  Md.  309,  §  1404. 
V.    Johnson,     26    Minn,     3l6, 

g  1416. 
V.  Leiber,  11  la.  407,  g  1409. 
V.  Ma\'berrv,  48  Me.  218,  §  1262. 
V.  Merrick,' 15  la.   123,  g  1412. 
V.  Parrott,  71  N.  C.  311,  "g4807i.. 
V.  Postlewait,  14  la.  446,  g  1413, 
V.  Powers,  25  Conn.  48,  g  1411, 
V.  Reader,  60  la.  527.  g  I4l0, 
V.  ShUUng,   14  la.  445,  g  1413. 
V.  Townsend.  37  Ala.  247,  g554, 
V.  Wdliams,  5  Wis.  308,  g  1412, 
V.  Wise,  7  Ind.  645.  g  1409. 
State  Bank  v.  BrovN-n,  12  Ai'k.  94, 
§348. 
V.  Cason,  10  Ark,  479,  g  348. 
V.  Marsh.   10  Ark.  129,"  g  1363, 
V.  Slaughter,    7    Blackf:    133, 
§  759. 
State  Mut.  Fire  Ins.  Co.  v.  Roberts, 

31  Pa.  St.  gg  438,  446, 
Stearns    v.   Gage,    79  N,   Y,    102, 

§§  6oa,  279, 
Stebbins  v.  Globe  Ins,  Co.  2  Hall, 

632,  g  480n, 

Stedman  v.  Gooch,  1  Esp.  3,  §  851. 

Steedman  v.  Poole,   16  L.   J,  Ch, 

349;  6  Hare,  193,  §§  15,  30,  48, 

313,  328, 

Steel  V.  ManseU,  6  Rich.  437,  §  101, 

V.  Merced  Co,  62  Cal,  6,  §  1217. 

Steele  v.  Townsend,  37  Ala.  247, 

g553. 
oieinbach  v.   Lesse,    27   Cal.    295, 
g  1358. 


Steinle  v.  Bell,  12  Abb.  Pr.  (N.  S.) 

171,  g  1044. 
Stephen  Hart,  The,  Blatch,   Prize 
Cas.  387,  g  1417, 
V.  Thompson,  28  Vt.  77,  §  1234. 
Stephensoii  r,  Dickson,  24  Pa,  St. 
148,  g  805, 
V.  Primrose,  8  Port,  (Ala,)  155, 

§943, 
r.  Rosse,  5  Ir,  Ch.  401,  §  11, 
V.  State,  28  Ind.  272,  g  1417. 
Sterling    v.    Peet,   14   Conn,    245, 

g  480c. 
Sterling  Bridge  Co.   v.  Baker,    75 

111.  139,  gg  672,  677. 
Sterry  v.  Arden,  1  Johns,  Ch,  261, 

gg  10,  38, 

Stetson  V,  Gulliver,  2  Cush.  494,§9G, 

Stevens  v.  Brown,  3  Vt.  420,  ^  192, 

V.  Currv,  10  ilinn.  316,   g  1174. 

V.  Goodenough,  26  Vt.  676,  g  59, 

V.     Hampton,     46    Mo,     "404, 

gg  134,  135. 
V.  Lynch,  12  East,  38,  §  975, 
V.  Monongahela  Nat'l  Bank,  87 

Pa.  St.  163,  g  94a. 
V.  Morse,  47  N.  H.  532,  g§  112, 

125. 
V.  Reeves,  9  Pick.  198,  §  480o. 
V.  Stevens,  1  Ashm.  (Pa.)  190, 
§434. 
Steward    v.   Hadlev,   55  Mo,    235, 

g  480c. 
Stewart  v.  Clark,  13  Mete.  79,  §  96. 
V.  Eden,  2  Cai.  121.  g  763, 
V.  Freeman,  10  Harris,  123,  g  96. 
V.  Harding,  2  Gray,  335,  g  631. 
V.  Hibernia  Banking  Ass'n,  78 

111.  596,  §  1358. 
V.  Huff,  19  la.  557,  §  97, 
V.  Kennett,  2  Camp,  177,  §  705. 
V.  McSweeny,     14    Wis.     468, 

gg  192,  193. 
V.  Pettigrew,     28    Ark.      372, 

§  1094, 
V.  Sonneborne,    49     Ala.    178, 

g502, 
V.  Wood,  63  Md,  252,  §  21, 
Stewart's  Case,  L.  R.  1  Ch.  App. 

574,  g  35. 
Stewton  V.  Cushe,  Yelv.  37,  §  1394. 
Stidham  v.  Matthews,  29  Ark,  650, 

gg  307,  310, 
Stiliwell  V.   Empire  F.  Ins,   Co,  4 

Cent,  L.  J.  463,  g§  1307,  1308, 
Stitt  V.  Huidekopers,  17  Wall.  384, 

g  1279. 
Stivers    v.    Thompson,    15    la.    1, 
§  1188. 


Ixxiv 


TABLE   OF   CASES    CITED. 


Stix    V.    Matthews,    63    Mo.    371, 

§g  910.  956,  968. 
Stockbridge  R'y  Bill,  Ex  parte,  L. 

R.  2  Eq.  364,  §  1404. 
Stockdale  ?'.  Housartl,  9  Ad.  &  L. 
lOT :  4  Jur.  70 ;  3  P.  D.  330, 
t<  1404. 
V.  Keys,  79  Pa.  St.  251,  §  85. 
Stockett  V.  Taylor,  3  Md.  Ch.  Dec. 

537,  J5  24. 
Stockton  V.  Hall,  Hai-d.  (Ky.)  160, 

i<  4;J4. 
Stocks  r.  Dobson,  19  E.  L.  &  E.  96, 

§431. 
Stoddard  v.  Kimball,  6  Cush.  469. 
§  94b. 
V.  Myers,  8  Ohio,  203,  §§  358, 
377. 
Stone  V.  Connelly,   1   Mete.  (Ky.) 
652,  i5  351. 
V.  Cook,  79  in.  424,  §  304. 
V.  Elliott,  11  Oluo  St.  252.  §  372. 
Story  t'.  Black  (Mont.),  1  Pac.  Rep. 

1,  §273. 
Stoughton  V.  Pasco,  5  Conn.  442, 

§  180. 
Stout  V.  Hvatt,  13  Kan.  232,  §  316. 
V.  Jackson,  2  Rand.  132,  g  480c. 
Stowe  r.    N.    Y.   etc.    R.    Co.    113 

Mass.  521,  gg  563,  566. 
Straight  v.   Harris,    14    Wis.    509, 

§203. 
Strang  r.  Allen.  44  111.  428,  §  1204. 
Sti-ickland  v.    Kirk,  51   Miss.   795, 

§§  65o,  273,  279. 
Strong  V.    Smithr  3  McLean,  362, 
§§  112,  125. 
V.  Taylor,  2  HiU.  326,  §  72.      * 
Stroaghill  v.  Anstey,  1  De  G.  M.  & 

G.  635,  §  22. 
Struver  v.  Ocean  Ins.  Co.  9  Abb. 

Pr.  23.  i^  1328. 
Stubbs  r.  Lund,  7  Mass.  453,  §  464. 
Studebaker  v.  Cody,   54  Ind.  586, 

§^  420,  422. 
Sturgis  V.  Fay,  16  Ind.  429,  §  1343. 
Sturtevant  v.  Orser,  24  N.  Y.  538, 

§466. 

Stuvvesant  v.  Hone,   2   Barb.   Ch. 

151 ;  1  Sandf.  Ch.  419,  t;^  203,  204, 

360,  361,  368. 

Sueterlee  v.  Sir,  25  Wis.  357.  §  1040. 

Suffield  V.   Brown,   9  Jur.  (N.  S.) 

999 ;  33  L.  J.  Ch.  256,  g  65a. 
Sugart  V.  Mavs,  54  Ga.  554,  §  480n. 
Suit  v.  Woodhall,   113   Mass.   391, 

§§  672,  677,  683,  6S3a,  690. 
SulUvan  V.   Heuse,    3    Colo.    424, 
g  1408. 


Summerville  v.  H.  &  St.  J.  R.  Co. 

62  Mo.  391,  ^  668. 
Sumner  v.  Bryan,  54  Ga.  613,  §  268. 
V.  Rhode-s,  14  Conn.  135,  §g  112, 
125. 
Surman  v.   Barlow,  2  Edm.   167, 

§§15,  313. 
Sussex  Bank  v.  Baldwin,  17  N.  J. 
L.  487,  i;,^  715.  795,  805,  817,  1021. 
Sutcliffe  V.   3IcDowel,   2    Nott    & 

McC.  251.  §  1009. 
Sutton  V.  Board  of  Police,  41  Miss. 
236.  §  480(7. 
V.    Tatliam,    10  Ad.  &  El.   27, 
?;  480o. 
SwaU  V.  Clarke,  51  Cal.  227,  §§  84, 

91. 
Swan  V.  Hodges,  8  Head,  251,  §960. 
Swartliout  v.  Ctutis,  5  N.  Y.  301, 

g?5  10,  20,  05. 
Swavze  v.   Britton,    17  Kan.  627, 

g  707. 
Sweet  V.  Patrick.  3  Fairf.  1,  §  480c. 
V.  Sju-ague,  55  Me.  190,  g  1072. 
Swift  V.  Smith,  102  U.  S.  442,  §  94. 

V.  Tyson.  16  Pet.  1,  g,5  80,  84. 
Swigert  v.  Bank  of  Kentucky,  17 

B.  Mon.  268,  g§  103,  257. 
Svkes  V.  Halstead,    1  Sandf.  483, 

'§  671. 
Sylvester  v.  Downer,  20  Vt.  355, 
§87. 
V.  Downer,  18  Vt.  32,  §  1388. 
Syme  v.  Stewart,  17  La.   An.    73, 

§  1405. 
Symmes  v.   Major,    21    Ind.    443, 
§  1413. 

T. 

Tact  V.  Crawford,  1  McCord,  265, 

§  101. 

Talbot  V.  Bedford,  Cooke  (Tenn,), 

447,  §  480c. 

V.  Gay.  18  Pick.  534,  p§  388, 413. 

Tallman  i\  White,  2  N.  Y.  66,  §  1109. 

Talman  v.   Barnes,  12  Wend.  227, 

§  1328. 
Tankard  v.  Tankard,  79  N.  C.   54, 

§g  65a,  273.  278,  288. 
Tanner  v.  Florence,  1  Ch.  Cas.  259, 

§§  15,  308,  321. 
Tardy  v.  Boyd,  26  Graft.  631,  §  985. 
Tarrant  v.  Blanchard,  1  De  G.  J.  & 

S.  107.  S  11. 
Tate  V.  Stooltzfoods,  16  S.  &  R.  35, 

§127. 
Taunton    Bank    v.    Richardson,   5 

Pick.  436,  §§  942,  1397. 


TABLE    OF    CASES    CITED. 


Ixxv 


Taunton  Copper  Co.  v.  Merch.  Ins 

Co.  22  Pick.  108,  §  480?i. 
Taylor  v.  ^tna  Life  Ins.   Co.  13 
Gray,  434,  i<§  480ii. 
V.  Balcer,  5  Price,  306.  §§  15,  30 

313. 
V.  Doe,  13  How.  287,  §  238. 
V.  French,  4  E.  D.  Smith,  458 

gg  946,  951. 
V.   Graham,    18  La.    An.    656 

§  1404. 
V.  Huj:;hes,   2  Jones  &  L.  34 

t<  676. 
V.    Kelly,    3    Jones    Eq.    240 

§,§  273,  278. 
V.   Lowcnstein,   50   Miss.    278 

§:<  246,  278. 
V.  Maris'   Ex'rs,    5  Rawle,   51 

§203. 
V.  Ross,  3  Yerg.   330,  §§  3S6 

396. 
V.  Snyder,  3  Den.  145,  §  991. 
V.   Stibbert,    2  Ves.    Jr.    437 
§§  48,  55,  278,  279,  281,  313 
V.  Thomas,   5   N.    J.    Eq.   331 

§97. 
V.  Youno;,  3  Watts,  339,  §  1020, 
Tebbets  v.  Dowd,    23  Wend.   379 

§§  956,  960,  969.  971. 
Tefit  V.  Munson,  57  Nv  Y.  97,  §  210 
Telegraph  Co.  v.  Griswold,  37  Ohio 

St.  301,  §  555. 
Temple  v.  State,  15  Tex.  App.  304 
49  Am.  Rep.  200,  §  1411. 
V.  The  People,  6  Bradw.  378 
§  150. 
Templeton  i\  Morgan,  16  La.  An 

438.  §  1413. 
Terrel  i\  Andrew  Co.  44  Mo.  309 
§§  147,  149,  167. 
V.  Bank  of  Mobile,  12  Ala.  502 
§  683o. 
Terry  v.  Merch.  Bank,  66  Ga.  177 
§  1408. 
V.    Milwaukee,    15    Wis.    490 
§  1404. 
Texas  v.  White,  7  Wall.  733,  §  146 
Thackery  v.  Blackett,  3  Camp.  164 

§  991. 
Tharpe  v.   Dunlap,  4  Heisk.    674 

§•§  339,  342a. 
Thatcher  v.  MoiTis,   11  N.  Y.   437 
§  1405. 
V.   West.    R.    Nat'l    Bank,    19 
Mich.  196,  §  94a. 
Thaver  v.  Daniels,  113  Mass.  129 

§  436. 
Tliillman  v.   Gueble,   32  La.    An 
260,  §  735. 


Third  National  Bank  v.  Lange,  51 

Md.  138,  §  87. 
Thomas  v.  Blackmore,  5  Yerg.  113, 
S  96. 
V.  Bost.  &  P.  R.  Co.   10  Mete. 

472,  §  566. 
V.  Davis,  7  B.  Mon.  227,  §  1230. 
V.  Grand  G.  Bank,  9  Sm.  &  M. 

201,  §§  112,  125,  589,  394. 
V.  Hubbell,  15  N.  Y.  405,  §  480Z. 
V.  Kennedy,  24  la.   397,  §  229. 
Thomason  v.  Frere,  10  East,   418, 

§  497. 

Thompson  v.  Cartwright,  33  Beav. 

178,  t;t5  688,  690. 

V.  Glover  (Ky.),  16  Cent.   L.  J. 

16;  8  Rep.  589,  §§394,  406. 

V.    Hamilton,     12    Pick.     426, 

§  480ii. 
V.  Haskell,  21  111.  215,  §  1412. 
V.  Pioche,   44  Cal.    508,  §§  96, 

274,  280.  286. 
V.  Posten,  1  Duv.  415.  §  94t>. 
V.  Railroad,  28  Md.  396,  §  457. 
V.  Simpson,  1  Dr.  &  War.   459, 

§104. 
V.  Speirs,  13  Sm.  469,  §  433. 
V.    Whitman,    18     Wall.    457, 

§  1379. 
V.  Wilcox,  7  Lans.  376,  §  208. 
V.  WiUiams,  14  Cal.  160,  §§  738, 
831. 
Thorington  v.    Smith,    8  Wall.    1, 

§  146. 
Thornber  v.  Sheard,  12  Beav.  589, 

§29. 
Tiiornliill  v.  Burthe,   29   La.    An. 

639,  §  185. 
Thornton  v.  Knox,  6  B.  Mon.  74, 
§  330. 
V.  Wynn,  12  Wheat.  183,  §  956. 
Thorp  V.    Merrill,    31    Minn.    336, 

§  1'5'6. 
Thorpe  v.  Peck,  28  Vt.  127,  §  781. 
ThraJl  v.  Horton,  44  Vt.  386,  §  94a. 
Throckmorton    v.    Price,   28    Tex. 

605,  §§  150,  154. 
Thunder  v.    Belcher,  3   East,-  449, 

§  600. 
Thurber  v.   Dwyer,    10   R.  I.  355, 

§  586. 
Tibbals  v.   Jacobs,   31   Conn.   428, 

§  143a. 
Ticlmor,   In    re,     35     Beav.    317, 

§437. 
Titfany  v.  Boatman's  Inst.  18  Wall. 

375,  §  6836. 
Tiffin    V.    Slillington,   3  Mo.    418, 
§§  1209,  1311. 


Ixxvi 


TABLE    OF   CASES    CITED. 


Tigross.  The,  33  L.  J.  Ailm,  07 ;  9 

Jiir.  N.  S.  361,  «M'3'1.  477. 
Tildcsley  v.   Lodge,  3  Smale  &  G. 

o43,  4;  11. 
Tillinsliast    v.   Champliu,  4  R.  I. 

173.  J<  2(5. 
Tilton  V.  Hunter,  24  Me.  29,  §§  205, 

210,  223. 
Timlow  V.  Phila.  etc.  R.  Co.  99  Pa. 

St.  284,  §  1408. 
Tinuns  v.   Delisle,   5  Blackf,  447, 

^.^  8-14.  883. 
Timson  v.  Ramsbottom,  2  Keen,  35, 

§  4o7. 
Tindal    v.    Brown,    1    T.    R.    164, 

i^.^  702,  703,  785. 
Titclibiirne  v.   White,   1  Str.  145, 

^544. 
Todd  V.  Edwards,  7  Bush,  89,  §  846. 
V.  Outlaw.  79  N.  C.  235,  §  374. 
Toledo,  etc.   Ins.  Co.  v.  Speares,  16 

Ind.  52,  §  480». 
Toledo,  etc.  R.  Co.  v.  Butler.  53  111. 

323,  S  1381. 
Tombeckbee    Bank  v.   DumeU,    5 

Mason,  66,  >i  483. 
Tompkins    v.    Wiltberger,   56    111. 

385,  §  1372. 
Tongue  r.  Morton,  6  Har.  &  J.  21, 

J;  339. 
Torrey  v.  Foss,  40  Me.  74,  §  998. 
Towdy  V.  Ellis,  22  Cal.  050,  ^  1327. 
Towle    V.    Leavitt,   23  N.    H.    36, 

t?§  660,  6r)2. 
Town  of  Waltham  v.  Kemper,  55 

111.  346 ;  8  Am.  Rep.  652,  §  iSOg. 

Townsend  v.  Lorain  Bank,  2  Ohio, 

315.  J^  840. 

V.  Tallent,  33  Cal.  45,  ^g  1053, 

1054,  1130. 

Tracy  v.  Steam,  etc.   Co.  1  E.  D. 

Smith  (N.  Y.).  349,  §1171. 
Traders'    Ins.    Co.    v.    Roberts,    9 

Wend.  404,  §  446. 
Trail  v.  Ellis,  16  Bear.  350,  §  690. 
Ti-ain  v.  Gold,  5  Pick.  380,  §  4801. 
V.  Jones,  11  Vt.  444.  §.§  386,  394, 
402. 
Trans.  'Co.   v.   Marshall,  37  Barb. 

509,  §  71. 
Travis  v.  Brox^m,  43  Pa.  St.  9,  §  1233. 
Treasurer  v.    Bishop,    39  Vt.    353, 

g  1411. 
Tredway  v.  McDonald,  51  la.  663, 

^  ''74 
Trefts  'v.  King,    18  Pa.    St.    157, 

§g  25,  40. 
Trenton  Banking  Co.  v.  Woodruff, 

2  N.  J.  Eq.  117,  §  6836. 


Trieber  v.  Commercial  Bank  of  St. 

Louis,  31  Ark.  128,  §  80. 
Trigg  V.   Conway,    1    Houst.   538. 

§  1405. 
Trimble  v.  Boothby,  14  Ohio,  109, 
§  357. 
V.  Thorn,  16  Johns.  152.  g  969. 
Tripe  t'.  Marcy,  39  N.  H.  439,  ^  208. 
Ti-iplett  V.  Hunt,  3  Dana,  126,  ^  717. 
Ti-ip])  V.  De  Bow,  5  How.  Pr.  (N.  Y.) 

114,  g  1209. 

Ti-ot  V.  McGavock,  1  Yerg.  (Tenn.) 

469,  §  1097. 
Trotter  v.   Grant,    2    Wend.    413, 

i^  480o. 
Trov  City  Bank  v.  Wilcox,  24  Wis. 

671,  §?$  288,  290. 
True  V.  Collins,  3  Allen.  438,  §  924. 
V.  Harding,  12  Me.  193,  gg  386, 
401. 
Ti-uesdale    v.    Ford,    37    111.    210, 

gc*  246,  273,  278,  288. 
Truitt  V.  Ti-uitt,  38  Ind.  16,  g  344. 
Trull    V.   Bigelow,    16    Mass.   406, 

gg  203,  241. 
Truscott  V.  King,  6  Barb.  346,  g  96. 
Ti-ustees,  etc.  v.  Eoi-k,  84  N.  Y.'220, 

g  280. 
Tucker    v.    Adams,    52    Ala.    254, 
§593.. 
V.  Baker,  10  Johns.  270,  §  625. 
V.  Harris,  13  Ga.  1,  g  219. 
V.  Henzill,  4  Ii-ed.  Ch.  R.  513, 

g  690. 
V.  State,  11  Md.  322,  g  1414. 
V.  Tilton,  55  N.  H.  223.  g  271. 
Tuckermau  v.   Fi-ench,   7  Greenl. 

115,  §402. 

Tudor  V.  Perkins,  3  Day,  364,  g  434. 
Tullis  V.  Scott,  38  Tex.  537,  §  1374. 
Tunison  v.  ChambUn,  88   111.  378, 

g?;  273,  277,  279. 
Tuuno  V.   Lague,  2  Johns.  Cas.  1, 

gg  714,  979. 
Tuustall  V.    Trapps,    3    Sim.    301. 
§672. 
V.  Walker,    2  Sm.   &  M.  638, 
g  907. 
Turnlnill  v.  Bowyer,  40  N.  Y.  450. 

§  1128. 
Turner  r.  Babb,  60  Mo.  342,  g  377. 
V.  Crebill,  1  Ohio,  372,  §g  357, 

Or*-!; 

V.  Fish,' 28  Miss.  306,  g  1408. 
V.  Goodrich,  26  Vt.  708,  §  480f . 
V.   Leach,    4  B.    &  Aid.    451. 

gg  795,  797. 
V.  Liverpool  Dock  Co.  6  Excl:, 

543,  §  464, 


TABLE   OF    CASES    CITED. 


Ixxvii 


Tui'ner's  Adm'rs  v.  Patton,  49  Ala. 

406,  §  1411. 
Tuttle  V.  Jackson,    6  Wend.   213, 

§§  10,  65a,  231,  273. 
Tweedale  v.   Tweedale,   23    Beav. 

341,  §  690. 
Twvman  v.  Hawley,  24  Gratt.  512. 

§'  593. 
Tybee,  The,  1  Woods,  358,  §§  573, 

575. 
Tybee  v.  Webb,  6  Beav.  552,  §§  47, 

674,  688. 
Tyly    V.    Morrice,    Carthew,    485, 

§  542. 
Tyson  v.  Smith,  1  Nev.  &  P.  784, 

§  480u. 

u. 

Unano;st  V.  Hibler,  26  Pa.  St.  150, 

§  391. 
Underwood  v.  Jeans,  4  Harr.  (Del.) 
201,  §§  1097,  1098. 
V.  Lord  Courtown,   2   Sch.  & 
Lef.  40,  §  104. 
Unger  v.  Mooney,  63  Cal.  586,  §280. 
Union  Bank  i\  Grimshaw,  15  La. 
321,  gi^  711,  956. 
V.  Hyde,  6  Wheat.  572,  §  935. 
V.  Willis,  8  Mete.  504,  §  87. 
Union,   etc.   Ins.   Co.  v.  Campbell, 

95  111.  267,  ^  143a. 
Union  Ex.  Co.  v.  Graham,  23  Ohio 

St.  595,  §  558. 
Union    Canal    Co.    v.    Young,    1 

Whart.  432,  §  226. 
Union  Mining  Co.  v.  Rocky  Mount- 
ain National  Bank,  2  Colo.  249, 
§683b. 
Union  Steamboat  Co.  v.  Klnapp,  73 

111.  506,  §  571. 
United  States  v.  Am.  Gold  Coin,  1 
Woolw.  217,  §  1417. 
V.    Grossmayer,    9    WaU,    73, 

§§  748,  980. 
V.  Hooe,  3  Cranch,  73,  §§  180, 

272. 
V.  Jackson, 104  U.  S.  41,  §§ 1404, 

1410. 
V.   Johnson,    2    Sawyer,    482, 

§  1411. 
V.  Palmer,  3  Wheat.  610,  §  1413. 
V.  Turner,  11  How.  663,  ^  1405. 
V.  Vaughn,  3  Binn.  394,  |  436. 
V.  Winchester,  2  McLean,  135, 
§  1257. 
United   States  Bank   v.    Burke,   4 
Blackf .  141,  g§  342a,  353. 
V.  Goddai-d,  5  Mass.  366,  §  795. 


United  States  Bank  i:  Southard, 

17  N.  J.  L.  473,  §§  957,  973,  1021. 
United  States  Ins.  Co.  v.  Shriver, 

3  Md.  Ch.   381,  §§  113,  244,  254, 

683a. 
Upton  V.  Moore,  44  Vt.  552.  §  431. 
Uther  V.  Rich,  10  Ad.  &  El.  784, 

§80. 

V 

Valentine  v.  Havener,  20  Mo.  133, 

§  239. 
Valk  V.  Gaillard,  4  Str.  99,  §  750. 
V.    Simmons,    4    Mason,    113, 
§  1009. 
Van  V.  Corpe,  2  Mylne  &  K.  369, 

§§  30,  331. 
Vain  Aken  v.  Gleason,  34  Mich.  477 

§262. 
Van  Busku-k  v.  Hartford,  etc.  Ins. 

Co.  14  Conn.  141,  §  436. 
Van  Doren  v.  Robinson,  16  N.  J. 

Eq.  256,  §§  15,  313. 
Van    Hook    v.    Throckmorton,    8 

Paige,  33,  §  341. 
Van    Hoesen    v.   Van    Alstyne,   3 

Wend.  75,  §  738. 

Van  Keuren  t".  Cent.  R.  Co.  of  N. 

J.  38  N.  J.  L.  165,  §§  279, 

299. 

V.  Corkins,  66  N.  Y.  77,  §  431. 

Van  Lenven  v.  Lyke,  1  N.  Y.  515, 

§  480 «. 
Van  Omeron  v.  Dowick,  2  Camp. 

44,  §  1404. 
Van  Orden  v.  Johnson,  1  McCarter, 

376,  §  203. 
Van  Rensselaer  v.  Clark,  17  Wend. 

25,  i<  199. 
Van  Santvoord  v.  St.  John,  6  Hill, 

157,  §  576. 
Van  Thorniley  v.  Peters,  26  Ohio 

St.  471.  §§  147,  149. 
Van  Vechten  v.  Pruyn,  13   N.  Y. 

549,  ^  852. 
Van  Wart  v.  WooUey,  3  B.  &  C. 

439,  §  742. 
Van  Wickle  v.   Downing,   19  La. 

An.  83,  §  957. 
Van  Wormer  v.  Albany,  15  Wend. 

262,  §  4807i. 
Van  AVyck  v.  Hardy,  4  Abb.  App, 

Dec.  496,  §  1045. 
Vance  v.   McNairy,   3  Yerg.    176, 

§96. 
Vandiver  v.  Roberts,  4  W,  Va.  493, 

§  1372. 


Ixxviii 


TABLE    OF    CASES    CITED. 


Vanduyne  v.  Vreeland,    13  N.    J. 

Eq.  142.  §  54. 
Vassault  v.   Austin,   36    Cal.    C91, 
^96. 
V.  Seitz,  31  Cal.  225,  §  1414. 
Vattier  v.  Hinde,  7  Pet.  253,  §  10. 
Vaughn  v.  Greer,  38  Tex.  530,  ^  97. 
V.  Tracy,  22  Mo.  415;  25  Mo. 
318,"  ^g  16,  2T5,  276. 
Veazie  v.  Parker,  23  Me.  170,  §§  205, 

207,  284. 
Verges  v.  Prejean,  24  La.  An.  78, 

§§  147,  149. 
Verner  v.  Switzer,  33  Pa.  St.  208, 

§541. 
Vei-non  v.  Manhatt m  Co.  22  Wend. 

183:  17  Wend.  524,  §§  505,  511. 
Viele  V.  Gerniania  Ins.  Co.  26  la. 
!J,  §  956. 
r.  Judson,  83  N.  Y.  33,  §  149. 
Vignolles  v.  Bowen,  13  Ir.  Eq.  194, 

^'  35. 
Villard  V.    Robert,  1  Str.  Eq.   393, 

S  119- 
Yinal  v.  Richardson,  13  Allen,  531, 

§§  415,  418. 
Virden  v.   Ellsworth,  15  Ind.   144, 

8  416. 
Virgin  v.   Wingfield,  54  Ga.  451, 

§  a- 
Virginia,   etc.   Co.    v.    Sayers,    26 

Gratt.  328,  ^  553. 
Voorhees  v.  Atlee,  29  la.  49,  §  936. 
Vorhees  v.  Bank  of  U.  S.  10  Pet. 

449,  g§  1057,  1085. 
Vullianiy  v.  Noble,  3  Meriv.  593, 

§  496. 
Vyse  V.  Wakefield,  6  M.  &  W.  443. 

§§418,430. 

w. 

Waffle   V.    Goble,    53    Bai-b.   517, 

§  1033. 
Wagner  v.   Diedi-ich,  50  Mo.  484, 
§  94a. 
V.  Tice.  36  la.  509,  §  1189. 
Wailes  v.  Cooper,  34  Miss.  208,  §§  10, 

29   307. 
Waldy  V.  Gray,   L.  R.  20  Eq.  238, 

§  690. 
Walker  v.  Allen,  72  Ala.  456,  §  1415. 
V.  Bank  of  State,  8  Mo.  704, 

§702. 
V.  Forbes,  25  Ala.  139,  §§  395, 

397,  426. 
V.    Gilbert,   1  Freem.   Ch.    75, 
§§  44,  97, 103. 


Walker  r.  Jackson,  10  M.  &  W.  ICl, 
gi;  537,  540. 
V.  Lavertv,  6  ]\Iunf.  487.  §  972. 
V.  Rogers^  40  lU.  278,  §§  957, 

973,  1017. 
V.  Scott,  29  Ga.  392,  §§  1199, 

1200. 
t'.  Sharpe,  14  Allen,  43,  §  611. 
V.  Shar]3c,  103  Mass.  154,  i^  640. 
V.  Smallwood,  Amb.  676,  §  348. 
V.  Stetson,  14  Ohio  St.  89,  §911. 
V.  Transp.   Co.    3    Wall.    150, 

§  553. 
V.  TunPtall,  3  How.  (Sliss.)  259, 
§907. 
Wall  V.  Bry,  1  La.  An.  312,  §  935. 
Wallace   t'.    Agiy,  4    Mason,    336. 
§822. 
V.  Moody,  26  Cal.  387,  §  137. 
Wallen  v.  Huff,  3  Sneed,  83,  §  343. 
Wallis  V.  Rhea,  10  Ala.  451,  §  231. 
Walls  r.  Bailey,  49  N.  Y.  464,  §'480o. 
Walsh  V.  Bovle.  30  Md.  267,  §  96. 
V.  Frank.  19  Ai-k.   370,  §  iSOn. 
V.  Miss.  Trans.  Co.  53  Mo.  434, 
§  480h. 
Walter  v.    Havnes,  Ry.  &    Mood. 
149,  §  924. 
V.  Maunde,  IJ.  &  W.  181,  §  46. 
Walters    v.   Brown,   15    Md.    285, 
§§  870,  873. 
V.  Monroe,  17  Md.  154,  §§  943, 

963. 
7.'. Wash.  Ins.  Co.  1  la.  404,  §434. 
Walwyn  v.  St.  Quintin,  1  Bos.  &  P. 

654, 'gi^  1001,  1004. 
Walz  V.  Alback,  37  ISld.  404.  §  87. 
Wanzer  v.  Carr,  76  N.  Y.  536.  §431. 
V.  Howland,  10  Vv^is.  8,  §  1371. 
Wai-d  V.  Heniy,  19  Wis.  76,  §  1413. 
V.  Ward,  5  Conn.  595.  §  418. 
r.  Morrison,  35  Vt.  593,  §  436. 
V.  Smith,  7  WaU.  447,  §  748. 
Warden  v.  HoweU,  9  Wend.  170, 

§  946. 
Warder  v.   Tucker,    7    Mass.   449, 

§g  337,  238,  975,  1017. 
Wardin  v.   Adams,  15  Mass.  233, 

§337. 
Ward's  Ex'rs  v.  Hague,  25  N.  J. 

Eq.  397,  §  203. 
Wanlwell   v.  Haight,  3  Barb.  549, 

§g  518,  519. 
Ware  v.  Lord  Egmont,  4  De  G.  I\I. 

&  G.  460.  i^g  11,  42. 
Wark  V.   Willard,  13  N.  H.   389, 

gg  214,  216. 
Warner  v.  W^hittaker,  6  Mich.  133, 
§96. 


TABLE    OF    CASES    CITED. 


Ixxix 


Warnock  v.   Wightman,    1    Brev. 

339,  §  201. 
Warren  r.  Ball,  87  111.  76,  §§  490, 
493. 
V.  Copeiin,  4  Mete.  594,  §  436. 
V.  French,  6  Allen,  317,  §  527. 
V.  Richmond,  53  111.   53,  J?  373. 
V.  Sweet,  31  N.  H.  833,  §§  17, 
379. 
Warrington  v.  Furbor,  8  East,  243, 

§991. 
Warwick  v.  Warwick,  3  Atk,  391, 

§§  674,  688. 
Washburn  v.  Goodman,    17   Pick, 

519,  §  496. 
Washburne  v.  Burnliam,  63  N.  Y. 

301,  §S  119,  133, 
Washington  v.  Pratt,  8  Wheat.  681, 

§  1109. 
Washington    Bank    v.    Lewis,    33 

Pick.  34,  §§  683,  683a, 
Wason  V.  Wareing,  15  Beav.  151, 

gi^  13,  30. 
Watkius  V.  Crouch,  5  Leigh,  533, 
§§  946,  949. 
V.  Edwards,  33  Tex,  443,  §  377. 
Watkinson    v.    Bank    of    Penn,    4 

Whart,  483,  §g  506,  519, 
WatUngton  v.   Howley,    1  Desau. 

167,  S  370, 
Watson  V.   Beabout,   18  Ind.  381, 
§§  420,  422, 
V.  Hnrt,  6  Gratt.  633,  §  87. 
V.  King,  4  Camp,  373,  §  671. 
V.  Mercer,  8  Pet,  88,  §  137. 
V.  Phelps,   40  Ga.  483,  §§  48, 

316. 
V.    Walker,     33    N,     H.     471, 

§^  1387,  1400, 
V.  Wells,  5  Conn.  468,  §§  674, 

684, 
V.  Wilcox,   89  Wis,  643,  §  369. 
V.  Wilson,  2  Dana,  406,  §  357, 
Way's  Trusts,  In  re,  2  De  G,  J,  & 

S,  365,  g  430, 
Weakly    v.    Bell,    9    Watts,     273, 

§900. 
Weatherwax  v.  Paine.  3  Mich.  555, 

§87. 
Weaver  v.  Borden,  49  N.  Y.  386, 
§93, 
V.  Crocker,  49  111,  461,  §  1365. 
Webb  V.  Dickenson,   11  Wend.   6, 
§403, 
V.  W^ilcher,  33  Ga.  565,  §  219, 
Webber  v.  Cox,  6  Monr.  110,  §  1087, 
V.  Taylor,  3  Jones  Eq,  9,  §  378, 
Webster  v.    Madox,   63    Me.    356, 
§§399,  301,  305. 


Webster  v.  Webster,  3  Swanst.  491, 
I  496. 
V.  Van  Steenburgh,  46  Barb. 
311,  §  97. 
Weed  V.  Pierce,  9  Cow,  733,  §§  343a, 

853. 
Weeks  v.   Tomes,    16    Hun,    349, 

§848. 
Weidler  v.  Farmers'  Bank  of  Lan- 
caster, 11  S.  &  R.  134,  §  43. 
Weil  V.   Lowenthal,    10    la.    575, 

§  1353, 
Weise  v.  Barker,  3  Pac,  Rep.  (Colo,) 

919,  §  152. 
Weisser  v.  Dennison,  10  N.  Y.  68. 

§  674. 

Weit  V.  Thayer,  118  Mass,  473,  §  80, 

Wells  V.  Archer,  11  S,  R,  412,  §  438. 

V.  Child,  12  Allen,  330,  §  4131, 

V.  Jackson,  etc.  Co,  47  N.  H, 

285,  §  1413. 

Welsh  V.  Gould,  2  Root,  287,  §  113. 

V.    Kirkpatrick,   30    Cal.    202, 

§  1318, 
V.   Pittsburg,   etc,    R,    Co.    10 
Ohio  St.  65,  §  555. 
Welton  V.   Garilardi,  G    Cal.    245, 

§  1332, 
Wemple  v.  Dangerfield,  3  Sm,  & 

M.  445,  §  805, 
Wendall  v.   North,   24    Wis.    223, 
§  480c, 
V.  Wadsworth,  20  Johns.  058, 
§  103. 
West  r.  Brown,   6  Ohio  St.   542, 
§g  805.  808, 
V.  Reid,  2  Ha,  249,  §§  11,  34. 
West  Branch  Bank  v.   Fulmer,   3 

Pa.  St.  399.  §  1021, 
West  J.  R.  R.  Co.  V.  Trenton  Car 

Co,  32  N.  J.  L,  515,  §  72, 
Westbrook  v.  Gleason,  79  K  Y,  33, 

§96, 
Westcott  V.  Fargo,  63  Barb,  353, 

§  553. 
Western  Tr.   Co,    v.  Marshall,   37 

Barb.  509,  §§  67,  71. 
Western    Bank    v.    Sherwood,    39 

Barb,  383,  §  431, 
Westervelt  v.  Haff,  3  Sandf.  Ch. 

98,  §  673. 
Westfield  v.  Mayo,  133  Mass.  100, 

§  480Hi. 
Westoby  v.  Day,  33  Eng.  L.  &  Eq, 

261,  §■  1160. 
Wetherbee  v.  Dunn,  33  Cal,   106, 

§  1413, 
Weymouth  v.  Wash.  etc.   R.  Co,  1 
MacArthur,  19,  §  1303. 


Ixxx 


TABLE   OF    CASES    CITED. 


■\Vlialley  v.  Small,  25  la.  184,  §  167. 
■Wharton  ?'.  Wriglit,  1  Cair.  &  Kir. 

585,  §  1)05. 
When  ton  v.   Dyer,    15  Conn.  307, 

§lia. 
Wheeler  v.  Webster,  1  E.  D,  Smitli, 

1,  ^  1414. 
Whit  bread  v.    Jordan.    1  You.    & 

Coll.  Exch.  303.  gg  11,  246,  219. 
White  c.  Carpenter,  2  Paige,  217, 
t^§  316,  341. 
V.  County,  58  111.  297;  11  Am. 

Rep.'  652,  8  480^. 
V.    Denman,    1    Ohio    St.    110, 

i^'^  112,  139,  231a. 
V.  Foster,  102  Mass.  375,  §§  14, 

244,  308. 
V.  Hampton,  13  la.  259,  §  168. 
V.  King,  53  vVla.  162,  §  6T9. 
V.    Murphy,    3    Rich.    L.    369, 

^  519.      . 
V.  Patten,  24  Pick.  324,  §§  214, 

216. 
V.  Perry,  14  W.  Va.  66,  §  374. 
V.    Stoddard,     11     Grav,    258, 

§^  724,  993. 
V.  Svdenstricker,  6  W.  Va.  46, 

■§  1381. 
V.  Wakefield,  7  Sim.  401,  §§  65a, 

297,  299,  303. 
V.  Welsh,  38  Pa.  St.  396,  §  463. 
V.  Williams,  13  Tex.  258.  i^  480c. 
Whiteacre  v.  Symonds,  10  East,  13. 

S650. 

Whitehead  v.  Anderson,  9  M.  &  W. 

518.  t^§  462,   464,  470,  480. 

V.  Clifford.  5  Taunt.  518,  i,  042. 

r.  Tuckett,  15  East,  400.  g  653. 

.     V.  Wells,  29  Ark.  99,  §  673. 

Whitelock  v.    Castro,  22   Tex.  108, 

§  1410. 
AVhitesell  v.  Crane,  8  W.  &  S.  369, 

§  480». 
Whitesides  v.  Poole,  9  Rich.  L.  68, 

§  1405. 
Whitfield  V.   Faussett.  1  Ves.  Sr. 

387,  S  11. 
Whitlesey   v.    Dean,    2    Ark.    263, 

§794. 
Wliitman  v.  Farmers'  Bank,  8  Port. 

(Ala.)  258,  §i<  717,  798. 
Whitney   v.    Abbot,  5   N.    H.  378, 
"§  941. 
V.  Groot,  24  Wend.  82,  §  402. 
Wliittington  v.  Wright,  9  Ga.   23, 

§207. 
Whitwell  V.  Johnson,  17  Mass.  449, 
§§  794.  815,  822. 
V.  Vincent,  4  Pick.  449,  §  72. 


Wickersham  i\   Chicago,  etc.  Co. 

18  Kan.  487,  §  96. 
Wickes  V.  Lake,  25  W^is.  71,  §§  273, 

284,  288,  290. 
Wickleffe  v.  Breckenridge,  1  Bush, 

427,  §§  342o,  348. 
Wicks  V.  Hatch,  62  N.  Y.  535,  §  662.- 
Wiggins  Ferry  Co.  v.  Cliic.  R.   Co. 

5  Mo.  App.374,  §1417. 
Willnaham  v.  Livesy,  18  Beav.  206, 

§§281,  303. 
Wilcox  V.  Hill,  11  Mich.  256,  §  96. 
V.  McNutt,  2  How.  (Miss.)  776, 

§  845. 
V.   Routh,   9  Sm.    &    M.   476, 
§§  744,  750. 
Wilcoxen  v.   Miller,   49    Cal.    193, 

§96. 
Wilde  V.  Gibson,  1  H.  of  L.  Cas. 
605,  §  37. 
V.  Wilde,  2  Nev.  306,  §1190. 
Wilder  v.    Brooks,    10    Minn.    50, 

§§  113, 118. 
Wildes    V.    Savage,    1    Story,    22, 

§§  395,  401. 
Wiley  V.  Knight,  27  Ala.  336,  §§  687, 

689. 

Wilkes  V.  Jacks,  Peak,  267,  §  1017. 

Wilkins   v.    Commercial    IBank.   6 

How.  (Miss.)  217,  §§  743.  745,  746. 

Wilkinson  v.  Hall,  3  Bing.  N.  Cas. 

508,  §  585. 
Will    V.    Whitney,    15    Ind.    194, 

§  1159. 
Willard  V.  Buckingham,  36  Conn. 

395,  §§  675,  690. 
Willes  V.  Greenhill,  4  De  G.    F.  & 

J.  147,  §§  679.  681,  694. 
William  H.  Nortluup,  The,  Blatch. 

Pr.  Cas.  235,  §  1417. 
Williams  v.   Adams,   43  Ga.   407, 
§  225. 
V.   Bank  of  United  States,   2 
Pet.    96,  §§  730,   786,    831, 
844. 
V.  Banks,  11  Md.   198,   §§  118, 

225. 
V.  Beard,  1  S.  C.  309,  §  101. 
V.  Benton,  12  La.  An.  91,  §  1257. 
V.  Brobst,  10  Watts,  111,  §1023. 
V.  Deriar,  31  Mo.  13,  §  595. 
V.  Empire  Ins.  Co.  6  Rep.  673, 

§  1307. 
V.  Granger,  4  Day,  444,  g§  418, 

1389. 
V.  Jones.  1  Bush,  621.  §  642. 
V.  Logan,  32  Ga.  165,  §  225. 
V.     Matthews,     3     Cow.     253, 
§§  740,  1397. 


TABLE    OF    CASES    CITED. 


Ixxxi 


Williams  v.  Miller,  1  Wash.  Ter. 
105,  §  1186. 
r.  Niagai-a  F.  Ins.  Co.  50  la. 

561,  §480*1. 
V.  Peyton,  4  Wheat.  77,  §  1106. 
V.   Smith,   3    B.    &    Aid.    496, 

i^S  805,  824. 
V.  Sprii^g,  6  Ohio  St.  585,  §§  281, 

288.  294. 
V.  Springs,  7  Ired.  384,  §  1389. 
V.  State.  67  Ga.  260,  §  1411. 
V.  State,  64  Ind.  553,  §  1411. 
V.  Tatnall,  39  HI.  553,  §§  687, 
689. 
WiUiamson  v.  Brown,  15  N.  Y.  354, 
t<§  8,  11,  30,  246,  249. 
V.  Wardlaw,  40  Ga.  703,  §  1150. 
Willis  V.  Green,  5  HiU,  233,  §§  758, 
761. 
V.  Vallett,  4  Mete.  (Kv.)  186, 
g  694. 
Willison  r.  Pattison,  7  Taunt.  439, 

S  980. 
Wilson  V.   Anderton,  1  B.  &  Aid. 
450,  §  471. 
V.  Basket,  47  Miss.  637.  S  1355. 
V.  Cockriil,  8  Mo.  7,  t<  1405. 
r.  Conway  F.  Ins.  Co.  41  R.  I. 

141,  §"^674. 
V.   Hamilton,  4  Ohio  St.  733, 

§  558. 
V.  Hart,  3  H.  &  M.  551 ;  L.  R. 
1  Ch.  463,  i^g  30,  65a.  386. 
V.  Hunter,  30  Ihd.  466,  §§  64, 

244,  246. 
V.  Johnson,  30  Tex.  499,  §  1137. 
V.  Ladd,  49  Me.  73,  §  1031. 
V.  McCullough,  23  Pa.  St.  440, 
§§  7.  11,  29. 
•    V.  School  Dist.  No.  4,  33  N.  H. 
118,  §  1390. 
V.  Senier,  14  Wis.  380,  §§  745, 

908.  946,  995. 
V.  Short.  6  Hare,  366,  §  35. 
V.  Swabv,  1  Stark.  34,  §  703. 
V.  W^all,-6Wall.  83,  §11. 
Wilty  V.  Hightower,   6  Sm.  &  M. 

345,  §§  44,  278. 
AVimberlv  v.   Collier,   33    Ga.    13, 

§  4S0c. ' 
Winborn  v.  Garrell.  3  Ired.  Eq.  117, 

§§  357,  375. 
Winchester  v.  Bait.  R.  Co,  4  Md. 

331,  §§  683a,  688,  690. 
AVindham  Bank  v.  Norton,  33  Conn. 

313,  §§  978,  1397. 
Winnipisseogee      Lake       Co.      v. 
Younge,  40  N.   H.  430,  §§  1408, 
1410. 


Winston  v.  Taylor,  38  Mo.  83.  §  1084. 
V.   AVestfeldt,     33     Ala.     760, 
g§  309,  373. 
Winter  v.  Landphere,  43  la.  471, 
§  177. 
V.  Lord  Anson,  1  S.  &  S.  434 ; 
S.  C.  3  Russ.  488,  §  689. 
AVinthrop  v.  Farrar,  11  Ajlen,  398, 

§  1397. 
AA' irtz  V.  Henry,  59  111.  109,  §  1355. 
Wise  V.  AVise,  3  Jones  &  L.  403. 

§437. 
Wiseman  v.  Hutchinson,  30  Ind. 
40.  §  307.     - 
V.  AA'estland,  1  Young  &  J.  117, 
§105. 
AVisenberg  v.  City  of  Ajjpleton,  36 
Wis.  56;  7  Am.  Rep.  39,  §  480gr. 
AA^'itczinski  v.    Everman,   51   Miss. 

841,  §  373. 
Withers  v.  Jenkins,  6  Rich.  (S.  C.) 

123,  §  143a. 
AVithington    v.    Herring,    5    Bing. 

443,  t^  656. 
AA^itman  v.   AA^atrv,   31  AA^is.    638, 

§  643. 
AA'ittenbrock   v.    Bellmer,   63   Cal. 

558,  §§  1203,  1209,  1317. 
AA'itter"^  v.    Dudlev,    43    Ala.    616, 

§S  6oo,  307. 
AAVlf    V.    Chalker,   31    Conn.  131, 

§  4801 
AAolfe  V.  Horton.  3  Cai.  86,  §  1177. 
AVollenweber  v.  Ketterlinus,  17  Pa. 

St.  389,  §  loor. 
AA^ood    V.    Bianchard,    19    111.  38, 
§  1126. 
V.  Chapin,  13  N.  Y.  509,  §  97. 
V.  Crocker,  18  Wis.  345,  §'§  569. 

570. 
V.  Fitz.  10  Mart.  (O.   S.)  196, 

§  1413. 
V.  Fowler,  36  Kan.  683;  40  Am. 

Rep.  330,  §  1410. 
V.  Hickok,  3  AVend.  501,  §  480o. 
V.  Krebbs,  30  Gratt.  708,  §§  65a, 

307. 
V.    Partridge,    11    Mass.    488, 

§  436. 

V.  AA^arren,  83  N.  Y.  265,  §  673. 

V.  AA'ood,  16  N.  Y.  428,  §  759. 

V.  Yeatman,    15  B.   Mon.  270, 

§403. 

AA^oodbridge  v.  Perkins,  3  Day,  364, 

§  436. 
AVoodcock  V.  Houldsworth,  16  M. 

&  AV.  124,  §  821. 
AVoodUflfe  V.  Connor,  45  Miss.  553, 
§  1368. 


Lxxxii 


TABLE   OF    CASES    CITED. 


Woodman  r.  Thurston,  8  Cush.  157, 

S  936. 
Wood  row  V.  O'Connor,  28  Vt.  776, 

§  1405. 
Woods  V.  Boots,  60  Mo.  546,  §  659. 
V.  Devin,  13  111.  746,  §  454. 
V.  Farmere,  7  Watts,  382,  ^§  7, 

29,  273,  294,  297,  298.  300. 
V.  Monroe,  17  Mich.  238,  §  1128. 
V.  Neeld,  44  Pa.  St.  86,  5^  919. 
V.    Sherman,    71    Pa.    St.    100, 

§§417,  421,  422. 
V.  AViider,  43  N.  Y.  164,  §  983. 
V.  Woods,  127  Mass.  141.  §  87. 
Woodson  V.  Eastman,  10  N.  H.  359, 

§  956. 
Woodthorpe  v.  Lawes,  2  M.  &  W. 

109,  §§  697.  720. 
Woodward  v.  Chic.  etc.  R.  Co.  21 
Wis.  309,  §  1411. 
V.  Foster,  18  Gratt.  213,  §  87. 
Woodworth  v.  Guzman,  1  Cal.  203. 
§97. 
V.  Paige,  5  Ohio  St.  70,  §§11, 
29. 
Woolfolk  V.  Bank  of  America,  10 

Bush,  504,  §§  80,  86. 
Wooster  v.  Sherwood,  25  N.  Y.  278, 

§§  67,  69. 
Worcester  Bank  v.  Cheney,  94  111. 
430,  §  1411. 
V.  Dorchester  Bank,   10  Cush. 
488,  §  80. 
Worden  r.  Nourse,  36  Vt.  7.:3,  §  714. 
Work    V.    Harper,    24    Miss.    517, 

§§  112, 125. 
Workingmen's  Bank  v.  Converse, 

33  La.  An.  963,  §  1408. 
Wormald  v.  Maitland,  35  L.  J.  Ch. 

(N.  S.)  69,  §  246. 
Wormley  v.   Wormley,  8  Wlieat. 

421,  §§  15,  308. 
Worsley  v.  Earl  of  Scarborough,  3 

Atk.  392,  §§  263,  338,  348,  375. 
Worthington  v.   Morgan,  16  Sim. 

547,  §§47,  65a. 
Wright  V.  Bates,  13  Vt.  341,  §  299. 
V.  Caldwell,  3  Mich.  51,  §  454. 
V.    Dunham,    13     Mich.     414, 

§  1411. 
V.  Hawkins,  28  Tex.  452,  §  1404. 
V.   Jlarsh,   2  G.    Greene,    109, 

§  1160. 
V.  Simpson,  6  Ves.  Jr.  714,  §  418. 
V.    Whiting,     40    Bai'b.     240, 
§  480»i. 


Wright  V.  Wood,  23  Pa.  St.  120, 

§§285,  287,  290.  294. 
Wright's  jMortgage  Trust,  16   Eq. 

Cas.  41,  §  111. 
Wyatt  V.    Barwell,   19    Ves.   435, 
§  108,  161. 
V.  Elam,  19  Ga.  335,  §  225. 
V.  Stewart,  34  Ala.  716,  §  231. 
Wyld  r.  Pickford,  8  M.  &  W.  443, 

§§  542,  558. 
Wynn  v.   Brooke,    5  Rawle,    106, 

§  480HI. 
Wythes  v.  Labouchere,  2  De  G.  & 
J.  593,  §  674. 

Y. 

Yancy  v.  Brown,  3  Sneed,  89,  §  401. 
Yeager  v.    Farwell,    13    Wall.    6, 

§  938. 
Yeatman  v.  Erwm,  5  La.  264,  §  899. 
Yoder  v.  Swope,  3  Bibb,  204,  §  48. 
York  V.   Craw-ford,   42  Miss.   508, 

§  1374. 
York  Co.  V.  Cent.  R.  Co.  3  Wall. 

107,  §  553. 
Young    V.    Commissioner,    etc.    3 
Nott  &  McC.  537,  §  480gr. 
V.  Durgin.  15  Gray.  264,  §  855. 
V.  Mackall,  4  Md.  362,  §  1247. 
V.  Smith,  28  Mo.  65,  §  592. 
V.  Tibbitts,  32  Wis.  79,  §§  499, 

507. 
r.  Wilson,  27  N.  Y.  351,  §§  149, 
180. 
Youngblood  v.  Vastine,  46  Mo.  239, 

§§  217,  222. 
Youughause   v.   Fingar,   63  Barb, 

299:  47  N.  Y.  99,  §1213. 
Youngs  V.  Lee,  12  N.  Y.  551,  §  837. 
r.  Ransom.  31  Barb.  49,  §1408, 
Yount    V.    HoweU,    14    Cal.    465, 

§  1413, 
Yrisarri  v.   Clement,   3  Bing.  438, 
§  1414. 

z, 

Zacharie  v.  Bowers,  3  Sm.  &  M.  641, 

§  1031. 
Zeigler  v.  Shomo,  78  Pa.  St.   357, 

§124. 
Zollar  V.   Janvrm,   47   N.    H.  324, 

§483. 
Zouch  V.  Willingale,  1  H.  Blackst. 

311,  §  648. 


THE  LAW  OF  NOTICE. 


CHAPTER  L 

THE  DIFFERENT  KINDS  OF  NOTICE. 

I.  Actual  Notice. 
n.  Constructive  Notice. 

I.  Actual  IS'otice. 

§  1.  Conflict  of  Authority  as  to  What  is  Actual  Notice. 

2.  Causes  of  the  Apparent  Conflict. 

3.  Distinction  between  Knowledge  and  Notice. 

4.  Same,  with  Illustration. 

5.  Different  Kinds  of  Actual  Notice. 

6.  Express  Notice. 

7.  Direct  Inforiliation. 

8.  Notice  by  ImpUcation. 

9.  Disregard  of  Notice  Amounting  to  Fraud. 

10.  Circumstances  Sufficient  to  Put  Upon  Inquiry.' 

11.  Knowledge  Imputed  to  One  Who  Has  the  Means  of  Knowing. 

12.  Notice  to  Pvirchasers  —  When  Actual. 

13.  Facts  Sufficient  to  Excite  Inquiry. 

14.  Possession  Insufficient. 

15.  Title  Papers. 

16.  Possession  Held  Sufficient. 

17.  Purchaser  to  Use  Diligence. 

18.  Purchaser  of  Equitable  Interest. 

19.  Vendor's  Lien. 

20.  Purchaser  from  Mortgagor. 

21.  Notice  of  Trust. 

22.  Purchaser  from  Insolvent  Trustee. 

23.  Suspicious  Circumstances. 

24.  Inadequacy  of  Price. 

25.  Relationship  between  the  Parties. 

26.  Notice  of  Partnership  Interest. 

27.  Information  Sufficient  to  Put  Upon  Inquiry. 

28.  Different  Sources  of  Information. 

1 


ii  THE    DIFFERENT   KINDS    OF    NOTICE. 

g  29.     Vaguo  Statements  Disregarded. 

30.  Degree  of  Certainty  Required. 

31.  Notice  to  an  Agent. 

32.  Principal  not  Benefited  by  Agent's  Fraud. 

33.  How  Principal  Affected  by  Notice  to  Agent. 

34.  Purchase  after  Fruitless  Inquiry. 

35.  Information  Allaying  Suspicion. 

36.  The  Effect  of  Reliance  on  Information  from  Doubtful  Sources. 
36a.  A  Practical  View  of  the  Distinction  between  Actual  and  Con- 
structive Notice. 

§  1.  Conflict  of  Authority  as  to  TVliat  is  Actual  No- 
tice.—  The  term  here  used  to  designate  that  l>ranch  of 
the  Law  of  notice  which  does  not  rest  upon  mere  legal  in- 
ference or  presumption,  and  to  distinguish  it  from  what  is 
properly  called  constructive  notice,  would  seem  to  be  suffi- 
ciently definitive  of  its  own  meaning  to  pass  without  further 
gloss  or  comment.  On  its  face,  it  would  appear  to  import 
its  character  so  clearly  and  unmistakably,  as  not  to  depend 
for  elucidation  upon  judicial  construction.  And  yet  the  de- 
cisions upon  this  question  are  far  from  harmonious,  even 
in  this  country,  and  the  contrariety  of  view  between  the 
courts  of  Great  Britain  and  the  United  States  is  equally 
perplexing  and  unsatisfactory. 

§  2.  Causes  of  the  Apparent  Conflict.—  The  conflict  of 
authority  is  more  apparent,  however,  tlian  real.  A  care- 
ful examination  of  some  of  the  cases,  in  which  the  most 
contradictory  methods  of  classifying  the  kinds  of  notice 
are  considered,  discloses  the  fact  that  much  of  the  con- 
fusion arises  from  attempts  to  give  general  definitions 
which  shall  embrace  just  sufficient  to  be  applicable  to  the 
cases  decided,  in  the  same  manner  as  they  are  applied  to 
precedent  cases  where  the  same  ])rinciples  are  involved,  A 
term  incapable  of  being  disposed  of  in  a  brief  definition 
may  be  thus  loosely  explained  and  convey  a  meaning  suffi- 
ciently clear  and  distinct  for  the  purposes  of  the  case ;  but 
when  there  is  an  attempt  to  apply  the  definition  thus 
hastily  constructed  to  other  cases,  it  may  express  too  much, 
or  too  little. 


ACTUAL   NOTICE.  3 

§  3.   Distinction   Between   Knowledge  and   Notice. — 

Actual  notice  has  been  defined  by  declaring  that  it  exists 
''  when  knowledge  is  actually  brought  home  to  the  part}" 
to  be  affected  by  it." '  This  excludes  all  notice  which 
does  not  amount  in  fact,  as  well  as  theory,  to  actual  hiowl- 
edge.  There  can  be  no  doubt  that  this  definition  is  too  nar- 
row. If  we  are  to  be  confined  strictly  to  what  would  be 
considered  in  metaphysics  as  actual  knowledge,  it  will  be 
necessary  to  banish  the  term  from  our  statutes,  and  the 
courts  will  be  compelled  to  abandon  it  as  unfit  for  judicial 
use.  Scarcely  any  fact  can  be  communicated  in  a  manner 
so  direct  as  to  exclude  every  possibility  of  doubt  as  to  its 
authenticity.  Absolute  knowledge,  in  the  strict  sense  of  the 
term,  imports  so  high  a  degree  of  certainty  as  to  the  mat- 
ter to  be  established,  that  to  require  it  in  every  instance 
would  render  the  adjustment  of  differences  between  man 
and  man,  on  an}^  just  basis,  practically  impossible.  Courts 
must  at  best  be  content  with  such  an  approximation  to  per- 
fect knowledge  as  the  natural  imperfections  of  human 
recollection  will  afford.  And  if  this  term,  like  all  others 
employed  to  express  the  intention  of  legislative  bodies,  is 
to  be  subjected  to  judicial  construction,  there  seems  no  good 
reason  why  it  should  not  be  construed  in  harmony  with  the 
whole  body  of  the  law,  and  so  as  to  effectuate  the  purposes 
for  which  laws  are  intended.- 

§  4.  8ame,  with  Illustration. —  The  courts  have  accord- 
ingly refused  to  confine  actual  notice  mthin  the  narrow 
limits  of  the  definition  quoted  above.  Their  departure  from 
the  rule  that  renders  actual  notice  and  actual  knowledge 
s^^nonymous  terms,  is  perhaps  most  conspicuous  in  cases 
arising  under  the  registry  laws,  where,  in  order  to  give  pre- 

1  Boxiv.  Law  Diet.,  236;  Story,  Eq.  Jur.,  g  399. 

-As  to  what  is  knowledge,  see  Lloyd  v.  Banks,  L.  R.,  3  Ch.,  488-90; 
Jolins  V.  Scott,  5  Md.,  81;  Brown  v.  Wells,  44  Ga.,  573-5;  Jones  v.  Lap- 
ham,  15  Kans.,  540-46;  Virgin  v.  Wingfield,  54  Ga.,  451-4;  Blatchley 
V.  Osborn,  33  Conn.,  226-33;  Lawton  v.  Gordon,  37  Cal.,  203-6;  McKin- 
ney  v.  Brights,  16  Pa.  St.,  399. 


4:  THE    DIFFERENT    KINDS    OF    NOTICE. 

cedence  to  a  prior  unrecorded  instrument,  over  a  subsequent 
one  affecting  the  same  land,  Ayhich  has  been  duly  re- 
corded, it  is  necessary  to  prove  that  the  subsequent  pur- 
chaser had  actual  notice  of  the  prior  unregistered  instrument. 
To  follow  the  strict  letter  of  Bouvier's  definition,  and  bring 
actual  knowledge  home  to  the  subsequent  purchaser,  noth- 
ing would  suffice  less  certain  than  the  presence  of  the  party 
to  be  affected  when  the  prior  instrument  was  executed,  and 
a  careful  inspection  thereof  by  him  with  sufficient  knowl- 
edge of  the  premises  described  to  enable  him  to  identify 
the  property  conveyed,  as  that  of  which  he  subsequently 
becomes  the  purchaser.  And  even  this  might  fail  to  fix 
him  with  actual  knowledge  at  the  time  of  the  subsequent 
purchase.  There  would  be  nothing  to  prevent  his  interpos- 
ing, as  an  excuse,  his  inability  to  understand  the  import  of 
the  prior  deed,  or  from  declaring  that  the  first  transaction 
had  passed  out  of  his  recollection  when  the  second  took 
place.  This  would  leave  the  question  of  knowledge,  after 
all,  to  be  determined  by  the  evidence.  The  main  fact 
would  depend  upon  inference  to  be  drawn  from  collateral 
circumstances.  But  where  one  purchased  a  piece  of  land  of 
which  there  was  a  former  conveyance,  the  registration  of 
which  was  absolutely  void  on  account  of  the  absence  of  the 
necessary  certificates  to  the  acknowledgment,  and  the  sub- 
sequent purchaser  was  informed  by  his  attorney,  employed 
to  investigate  the  title,  that  such  void  registry  had  been 
made,  it  was  held  that  this  information  was  sufficient  to  put 
him  upon  inquiry,  and,  taken  in  connection  with  other  col- 
lateral circumstances  of  a  less  significant  character,  would 
warrant  the  conclusion  that  the  subsequent  purchaser  had 
actual  notice  of  the  prior  deed.^  This  was  several  removes 
from  actual  knowledge. 

§  5.  Different  Kinds  of  Actnal  Notice.—  There  are  two 
classes  of  actual  notice,  which  for  convenience  may  be 
designated  as,  1.  Express^  which  includes  all  knowledge  or 
information  coming  to  the  party  to  be  charged,  of  a  degree 

*  Musgrove  v.  Bonser,  5  Oreg.,  313 ;  Hastings  v.  Cutler,  24  N.  H.,  481. 


ACTUAL   NOTICE.  5 

above  that  which  depends  upon  collateral  inference,  or 
which  imposes  upon  him  the  further  duty  of  inquuy ;  and 
2.  Imrplied^  which  imputes  knowledge  to  the  party  because 
he  is  shown  to  be  conscious  of  having  the  means  of  knowl- 
edge, though  he  does  not  use  them.  In  other  words,  where 
he  chooses  to  remain  voluntarily  ignorant  of  the  fact,  or  is 
grossly  negligent  in  not  following  up  the  inquiry  which  the 
known  facts  suggest. 

§  6.  Express  Notice. —  The  first  of  these  classes  is  easily 
and  briefly  disposed  of.  Not  only  would  it  embrace  what 
might  fairly  be  called  knowledge,  from  the  fact  that  it  was 
derived  from  the  highest  evidence  to  be  communicated  by 
the  human  senses ;  but  also  that  which  is  communicated  by 
direct  and  j)ositive  information,  either  written  or  oral,  from 
persons  who  are  personally  cognizant  of  the  fact  commu- 
nicated. 

§  7.  Direct  Intormation. —  It  has  been  decided  in  sev- 
eral cases  where  the  information  came  from  those  whose 
means  of  knowledge  were  of  an  inferior  sort,  that  this  notice, 
to  effectually  bind  subsequent  purchasers,  must  come  from 
parties  in  interest ;  ^  and  in  other  cases  it  is  decided  that  the 
statements  of  third  parties  who  are  ignorant  of  the  facts 
will  not  amount  to  notice.-  But  it  has  been  held,  in  a  case 
in  which  the  inadequacy  of  the  vague  and  uncertain  con- 
jectures of  those  unacquainted  with  the  facts  is  fully  recog- 
nized, that  where  the  communication  comes  from  those  who 
speak  advisedly  of  the  matter,  or  from  information  in 
their  possession,  of  a  definite  character,  the  notice  wiU  be 

1  Rogers  r.  Hoskins,  14  Ga.,  166;  Miller  v.  Cresson,  5  Watts  &  Serg., 
284;  Woods  u,  Farmere,  7  Watts,  382;  Sug.  on  Vend.,  755,  and  cases 
cited;  Earnhardt  v.  Greensliields,  9  Moo.  P.  C.  C,  18;  Jay  v.  Richard- 
son, 30  Beav.,  563;  Greenslade  n.  Dare,  20  Beav.,  284;  Central  R'y  Co. 
of  Venezuela  v.  Kisch,  3  L.  R.  App.  Ca.,  112;  Hamilton  v.  Royse,  2  Sch. 
&  Lef.,  315. 

2 Butler  V.  Stevens,  26  Me.,  484;  Wilson  v.  McCullough,  11  Harris,  440; 
City  Council  v.  Page,  1  Speers'  Eq.,  159;  Lamont  v.  Stimson,  5  Wis., 
443. 


6  THE    1>IF1-•EUE^•T    KINDS    OF   NOTICE. 

sufRcicnt  to  affect  the  conscience  of  the  purchaser.'  In  some 
of  the  cases  cited,  however,  the  notice  obtained  by  informa- 
tion is  regarded  as  of  that  character  which  has  the  effect  of 
putting  the  purchaser  upon  inquiry.  But  when  the  informa- 
tion comes  directly  from  the  party  in  possession  of  full 
knowledge  of  the  facts  communicated,  and  is  so  full  and 
complete  as  to  all  the  essential  details  of  the  matter  as  to 
carr}^  conviction  to  an  ordinary  mind,  it  would  properly  be 
classed  as  express  notice,  though  it  stopped  far  short  of 
what  might  be  correctl}^  termed  absolute  knowledge."- 

§  8.  Notice  by  Implication. —  Implied  notice  includes 
neither  positive  knowledge,  nor  information  so  direct  and 
unequivocal  as  necessarily  to  carry  conviction  to  the  mind 
of  the  person  notified.  Xeither  does  it  belong  to  that  class 
which  depends  upon  legal  presumption.  It  is  circumstan- 
tial evidence,  from  which  the  jury,  after  estimating  its 
value,  may  infer  notice.  It  differs  from  express  notice  for 
the  reason  that  the  latter  is  supposed  to  be  absolutely  con- 
vincing in  itself,  while  the  former  merely  suggests  to  the 
mind  of  the  person  to  be  thereby  affected,  the  existence  of 
the  fact  to  which  his  attention  is  directed,  and  points  out 
the  means  by  which  he  may  obtain  positive  and  convincing 
information.'  It  differs,  on  the  other  hand,  from  constructive 
notice,  with  which  it  is  frequently  confounded,  and  which  it 
greatly  resembles,  with  respect  to  the  character  of  the  inf  er- 

1  Jackson  v.  Burgott,  10  Jolms.,  457;  Pearson  v.  Daniel,  2  Dev.  &  Bat. 
Eq.,  366;  Doyle  v.  Teas,  4  Scam.,  202;  Mulliken  v.  Graham,  72  Pa.  St., 
484:  Cui-tis  v.  Mundy,  3  Mete,  407;  Cox  v.  Milner,  23  111.,  476;  Rupert 
V.  Mark,  15  id.,  542;  Ibbotson  v.  Rhodes,  2  Vern.,  554;  Peai'son  v.  Mor- 
gan, 2  Bro.  Ch.,  353:  Bridge  v.  Beadon,  L.  R.,  3  Eq.,  664;  Lee  v.  How- 
lett,  2  K.  &  J.,  531;  Burrowes  v.  Locke,  10  Ves.,  470;  SUm  v.  Ci-oucher, 
1  De  G.,  F.  &  J.,  518;  Barry  v.  Croskey,  2  J.  &  H.,  21. 

^MnsgTove  v.  Bonser,  5  Oreg.,  313;  Hastings  v.  Cutler,  24  N.  H.,  481 ; 
Barnes  v.  McCUnton,  3  Pa. ,  67. 

sParnsworth  v.  Cliilds,  4  Mass.,  637;  Roberts  v.  Anderson,  3  Jolms. 
Ch.,  371 ;  Pitney  v.  Leonard,  1  Paige,  461 ;  Bingamore  v.  Hyatt,  1  Smed 
&Mar.  Ch.,437. 


ACTUAL    NOTICE.  i 

ence  upon  wMch  it  rests;  constructive  notice  being  the 
creature  of  positive  la^Y,  or  resting  upon  strictly  legal  infer- 
ence/ while  implied  notice  arises  from  inference  oifactr 

§  9.  Disregard  of  Notice  Amoimtiug  to  Fraud.— An 
example  of  these  distinctions,  as  drawn  by  the  courts,  is 
furnished  by  the  holding  in  a  case  between  a  party  claiming 
under  a  prior*  unregistered  deed  and  one  claiming  under  a 
subsequent  registered  conveyance,^  similar  to  that  already 
cited.*  There  the  court  decided,  under  a  statute  requiring 
actual  notice  to  charge  subsequent  parties  with  notice  of 
prior  unrecorded  instruments  or  equitable  claims,  that  the 
party  claiming  under  the  unrecorded  deed  was  not  required 
to  prove  that  the  subsequent  purchaser  had  certain  knowl- 
edge of  the  prior  conversance,  such  as  he  would  have  if  he 
had  seen  the  first  deed  executed  and  dehvered  to  the  grantee. 
It  was  held  that  something  less  than  positive  personal 
knowledge  of  the  fact  of  the  conveyance  would  be  sufficient 
to  constitute  "actual  notice,"  within  the  true  intent  and 
meaning  of  tlie  statute.  The  test  of  suificiency  applied  to 
the  notice  in  this  case  was  that  it  "  should  be  so  express  and 
satisfactory  to  the  party  as  that  it  would  be  fraud  in  him 
subsequently  to  purchase,  attach  or  levy  upon  the  land,  to 
the  prejudice  of  the  first  grantee." 

§  10.  Circumstances  Sufficient  to  Put  Upon  Inquiry.— 
Wiiere  the  matter  of  which  express  notice  is  proved  is 
merely  a  circumstance  collateral  to  the  main  fact  with 
notice  of  which  it  is  sought  to  charge  the  party,  the  col- 

'  Plumb  t'.  Fluitt,  2  Anstr.,  433;  Davis  v.  Bigler,  63  Pa.  St.,  241;  Las- 
selle  V.  Burnett,  1  Blackf.,  150;  Cotton  v.  Hart,  1  A.  K.  Marsh.,  56; 
Hinde  v.  Vattier,  1  McLean,  110. 

2  Williamson  v.  Brown,  15  N.  Y,,  354;  Heermans  v.  Ellsworth,  64  N. 
Y.,  159;  Hoyt  v.  Sheldon,  3  Bosw.,  367;  Massie  v.  Greenhow,  2  Pat.  & 
Heath.,  355.  Mere  notice  of  execution  of  deed  not  notice  of  contents. 
Mocatta  v.  Murgatroyd,  1  P.  Wms.,  393;  Beckett  v.  Cardley,  1  Bro.  Ch., 
353;  RancUfle  v.  Parkyns,  6  Dow.,  149;  Lloyd  v.  Banks,  L.  R.,  3Ch.," 
488,  490. 

3  Curtis  V.  Mundy,  3  Mete,  405. 
«  Ante,  §  4,  note. 


8  THE   DIFFERENT   KINDS    OF    NOTICE. 

lateral  circumstance,  if  sufficient  to  put  hiiii  upon  inquiry 
leading-  to  the  truth,  will,  in  general,  be  regarded  as  good 
notice  of  the  ultimate  fact  to  be  established.^  iVll  the  cases, 
however,  where  this  doctrine  is  maintained  do  not  go  the 
length  of  holding  that  facts  and  circumstances  sufficient  to 
put  the  party  to  be  affected  upon  inquiry  would  amount  to 
actual  notice  of  such  fact ;  nor  even  evidence  from  which 
the  jury  might  infer  positive  knowledge  or  express  notice; 
but  that  it  would  amount  to  cotistruotive  notice;  while  others 
declare  quite  plainly  that  proof  of  such  circumstances  war- 
rants the  inference  of  actual  notice?  This  difference  does 
not  necessarily  indicate  a  conflict  between  the  authorities, 
but  merel}"  sliows  that  the  same  circumstances  from  which 
the  jury  might  infer,  as  matter  of  fact,  that  express  notice 
had  been  given,  would  serve  as  a  foundation  for  the  legal 
presumption  which  the  party  to  be  charged  would  not  be 

1  McDonald  v.  Gaunt,  3  Pac.  Rep.,  871;  Philips?;.  Reitz,  16  Kan.,  396; 
Baker  v.  BUss,  39  N.  Y.,  70;  Green  v.  Slayter,  4  Johns.  Ch.,  38;  McDan- 
iels  V.  Flower  Brook  Manuf'g  Co.,  22  Vt.,  274;  McGehee  v.  Giudi-at,  20 
Ala.,  95 ;  Center  v.  P.  &  M.  Bank,  22  Ala.,  743 ;  Maybin  v.  Kuby,  4  Rich. 
Eq.,  105;  Raritan  Water  Power  Co.  v.  Veghte,  21  N.  J.  Eq.,  463;  Hoy 
V.  Bramhall,  19  N.  J.  Eq.,  563;    Danforth  v.  Dart.,  4  Duer,  101;  Parker 
V.  Kane,  4  Wis.,  1;  Sterry  v.  Arden,  1  John.  Ch.,  261;  Tuttle  v.  Jack- 
son, 6  Wend.,  213;  Peters  v.  Goodi-ich,  3  Conn.,  146;  Pendleton  v.  Fay, 
2  Paige,  202;  BlaisdeU  v.  Stevens,  16  Vt.,  179;  Stafford  v.  Ballou,  17  Vt. 
329;  Vattierf.  Hmde,  7  Pet.,  252;  Ringgold  v.  Waggoner,  14  Ark.,  69 
Swarthout  v.  Curtis,  5  N.  Y.,  301;  RandaU  v.  Silverthorne,  4  Perm.  St. 
173;  Parke  v.  Chadwick,  8  W.  «&  S.,  96;   Sergeant  v.  IngersoU,  7  Penn 
St.,  340;  S.  C,  15  id.,  343;   Maitland  v.  Backhouse,  17  L.  J.  Ch.,  121 
Espy  V.  Lake,  10  Ha.,  260;  Dawson  v.  Pi-mce,  2  D.  &  J.,  41;  Dettmar  v. 
Metropolitan,  etc..  Bank,  1  H.  &  M.,  641;   Mangles  v.  Dixon,  3  H.  L. 
702;  Owen  v.  Homan,  4  H.  L.,  997;  Perry  v.  HoU,  2  De  G.,  F.  &  J.,  38 
Broadbent  v.  Barlow,  3  De  G.,  F.  &  J.,  570. 

^HuU  V.  Noble,  40  Me.,  459;  Buttrick  v.  Holden,  13  Met.,  355;  Buck  v. 
Paine,  50  ]Miss.,  648;  Canton  v.  City  of  Portland,  4  Oreg.,  339;  Cui-tis 
V.  Blair,  4  Cush.,  309;  Epley  v.  Witherow,  7  Watts,  163;  Brinknaan  v. 
Jones,  44  Wis.,  498;  Lainbert  v.  Newman,  56  Ala.,  623;  Helms  v.  Chad- 
bourne,  45  Wis.,  60;  Shepardson  v.  Stevens,  71  111.,  646;  Reynolds  v. 
Ruckman,  35  I\Iich.,  80;  Munroe  v.  Eastman,  31  IMich.,  283;  Eck  v. 
Hatchers,  58  Mo.,  235;  Barker  v.  Foy,  43  Miss.,  260;  Wailes  v.  Cooper, 
24  Miss.,  208. 


ACTUAL   NOTICE.  9 

permitted  to   deny,  where   constructive   notice   would  be 
effectual.^ 

§11.  Knowledge  Imputed  to  One  Who  Has  the  Means 
of  Knowing. —  It  is  easy  to  understand  how  one  may 
be  conchided  from  denying  actual  notice  when  positive 
information  has  been  traced  directly  to  him.  It  is  not 
necessary  to  invoke  the  doctrine  of  constructive  notice  in 
order  to  justify  holding  that  he  will  not  be  heard  to  deny 
that  he  understood  the  import  of  what  was  clearly  and 
plainly  communicated.  Whether  the  notice  has  been  com- 
municated cannot  be  determined  by  the  standard  of  the 
recipient's  stupidity  or  heedlessness.  For  the  reason,  there- 
fore, that  ignorance  of  an  important  fact  which  has  been 
placed  within  the  easy  reach  of  a  party  imports  either 
fraud  or  gross  negligence  on  his  part,  the  law  will  never 
inquire  further  than  is  necessary  to  show  the  giving  of  the 
notice  by  such  means  as  are  sufficient  to  convey  intelligence 
from  one  human  being  to  another.  It  has  accordingly  been 
held  that,  "  When  a  party  having  knowledge  of  such  facts 
as  would  lead  any  honest  man,  using  ordinary  caution,  to 
make  further  inquiries,  does  not  make,  but,  on  the  contrary, 
studiously  avoids  making,  such  obvious  inquiries,  he  must 
be  taken  to  have  notice  of  these  facts,  which,  if  he  had 
used  such  ordinary  diligence,  he  would  readily  have  ascer- 
tained." 2 

1  See  post,  §  37  et  seq.  For  examples  of  circtimstances  held  insuffi- 
cient to  put  a  purchaser  upon  inquuy,  see  Cathaj^  v.  Sydenham,  2  Brown, 
Ch.,  391;  Smith  v.  Reese  River  Co.,  L.  R.,  2  Eq.,  264.  In  the  latter 
case  it  is  held  that  one  i-elying  upon  statements  of  duectors  is  not  put 
upon  inquhy  by  the  statement  that  further  information  is  to  be  had  at 
the  office  of  the  company. 

2  Baron  Alderson,  in  Whitbread  v.  Jordan,  1  You.  &  Coll.  Exch.,  303; 
Hankinson  v.  Barbour,  29  III.,  80;  Lewis  v.  Bradford,  10  Watts,  67; 
Williamson  v.  Brown,  15  N.  Y.,  354;  Fiske  v.  Potter,  2  Keyes,  64;  Ohver 
V.  Piatt,  3  How.,  333;  Jenkins  v.  Eldridge,  3  Story,  181;  Wilson  v.  Wall, 
6  Wall.,  83;  Briggs  v.  Taylor,  28  Vt.,  180;  Woodworth  v.  Paige,  5  Ohio 
St.,  70;  BlaisdeU-y.  Stevens,  16  Vt.,  179;  Booth  v.  Barnum,  9  Ct.,  286; 
Jones  V.  Smith,  1  Ha.,  43;  West  v.  Reid,  2  Ha.,  249;  Owen  v.  Homan, 
4  H.  L.,  997;  Jones  v.  Williams,  24  Beav.,  47;  Tarrant  v.  Blanchard,  1 


10  THE    DIFFERENT   KINDS    OF    NOTICE. 

§  1 2.  Implied  Notice  to  Purchasers  —  When  Actual. — 

A  familiar  class  of  cases  in  Avliicli  this  doctrine  is  ap- 
plied is  that  to  which  the  examples  already  furnished  be- 
long, where  the  controversy  lies  between  purchasers  of  the 
same  piece  of  real  estate,  and  the  first  purchaser  holds 
under  an  unrecorded  conveyance  of  which  it  is  sought  to 
charge  the  subsequent  purchasers  -with  notice.^  In  a  case  of 
this  kind,  arising  under  the  provisions  of  a  statute  requir- 
ing actual  notice  of  unrecorded  instruments,  in  order  to 
affect  subsequent  purchasers  for  value,  and  where  the 
spreading  of  an  instrument  upon  the  records,  wliich,  for  the 
want  of  certain  formalities,  was  not  entitled  to  be  recorded, 
did  not  amount  to  constructive  notice  under  the  statute,  it 
was  held  by  Judge  Bliss  that,  "  If  the  deed  was  actually 
put  upon  record,  although  not  so  acknowledged  that  its  rec- 
ord would  be  constructive  notice,  and  if  the  party  saw  that 
record,  it  would  be  very  strong,  if  not  conclusive,  evidence 
of  the  actual  notice  required  by  statute.  The  object  of  the 
registry  act  is  to  protect  innocent  purchasers,  and  no  subse- 
quent purchaser  can  be  innocent  who  knew  of  a  previous 

DeG.,  J.  &  S.,  107;  Mayor,  etc.,  v.  Mun-ay,  7  De  G.,  M.  &  G.,  497; 
Gen'l  Steam,  etc.,  Co.  v.  Rolt,  6  C.  B.,  N.  S.,  550. 

The  means  of  knowledge  which  will  warrant  the  inference  of  notice 
must  be  such  as  could  be  rendered  available  by  the  exercise  of  ordinaiy 
prudence  and  diligence.  The  knowledge  must  be  practically  within  the 
reach  of  a  reasonable  man.  The  person  is  not  to  be  charged  with  no- 
tice for  failure  to  exercise  extreme  or  extraordinary  caution.  Lament 
V.  Stimsou,  5  Wis.,  443;  Colquitt  v.  Thomas,  8  Ga.,  258;  "VYiison  v.  Mc- 
Cullough,  23  Pa.  St.,  440;  Hill  r.  Simpson,  7  Yes.,  153;  Ware  v.  Egmont, 
4  DeG.,  31.  &  G.,  460;  Greenslade  v.  Dare,  20  Beav.,  284;  Dodds  r. 
HUls,  2  H.  &  M.,  424;  Stephenson  v.  Rosse,  5  Irish  Ch.,  401 ;  Jackson  ?-. 
Rowe,  2  Sun.  &  St.,  472;  Whitfield  v.  Faussett,  1  Yes.  Sr.,  387;  Hine 
V.  Dodd,  2  Atk.,  275;  Montefiore  v.  Browne,  7  H.  L.  Cas.,  241:  Tildesley 
V.  Lodge,  3  Smale  &  G.,  543.  Nevertheless  it  has  been  frequently  held 
that  one  contemplating  a  purchase  of  real  estate,  being  put  upon  in- 
quuy,  is  not  exonerated  by  merely  making  an  examination  of  the  rec- 
ords, and  finding  no  title  in  conflict  with  that  of  his  grantor.  Shotwcll 
V.  Harrison,  30  Mich.,  179;  Pringle  v.  Dunn,  37  Wis.,  449;  Brinkman  r. 
Jones,  44  Wis.,  498;  Littleton  v.  Giddings,  47  Tex.,  109;  post,  %  270. 

^Ante,  §§  4,  9. 


ACTCAL   XOTICE.  11 

conveyance,  wlietlier  it  be  so  acknowledged  as  to  authorize 
its  record  or  not.  And  it  would  be  absurd  to  say  that  an 
exhibition  to  him  of  a  copy  of  such  conveyance,  made 
under  circumstances  that  would  presume  it  to  be  a  genuine 
copy,  would  be  no  evidence  of  such  notice."  ^  The  learned 
judge  would  probably  have  gone  furtlier,  had  the  case  re- 
qmred  it,  and  laid  down  the  doctrine  that  one  Avho  had  seen 
a  copy  of  the  prior  deed,  under  such  circumstances,  would 
be  in  possession  of  such  notice  as  to  render  fraudulent  a  sub- 
sequent purchase  by  him  of  the  property  thereby  conveyed. 

§  13.  Sufflcieucy  of  Certain  Facts  to  Excite  Inquiry. — 
There  is  a  decided  conflict  of  authority,  both  Enghsh 
and  American,  concerning  some  particular  facts,  whether 
they  are  sufficient  to  put  a  purchaser  upon  inquhy,  so  as  to 
charge  him  with  knowledge  of  a  prior  conveyance.  This 
conflict  cannot  be  reconciled,  nor  can  anything  hke  a 
general  rule  be  deduced  therefrom,  which  would  not  be  sub- 
ject to  a  midtitude  of  exceptions,  for  the  reason  that,  in 
estimating  the  effect  upon  the  conscience  of  the  purchaser 
of  particular  circumstances  brought  to  his  knowledge  prior 
to  the  purchase,  there  are  doubtless  many  considerations, 
purely  local  in  their  character,  which  tend  to  affect  the  value 
of  such  circumstances  as  evidence  of  notice.^ 

Thus,  on  the  purchase  of  one  of  two  adjoining  estates, 
both  of  which  belonged  to  the  same  owner,  it  was  held 
that  the  binding  covenants  entered  into  with  the  mort- 
gagee of  the  estate  not  ptn-chased  Avould  not  give  notice  of 
the  expenditures  made  on  both.-'     So  where  the  title  deeds 

I  Musick  V.  Barney,  49  Mo.,  458;  Maupin  v.  Emmons,  47  id.,  304,  30G, 
307;  Pringle  v.  Dunn,  37  Wis.,  449,  461,  464;  Partridge  v.  Smith,  2  Biss. , 
183,  185,  186;  Gilbert  u/ Jess,  31  Wis.,  110;  Hastings  v.  Cutler,  24  N.  H., 
431;  Musgrove  v.  Bonser,  5  Oreg.,  313.  Contra,  Kerns  v.  Swope,  2 
Watts,  75. 

2Lo\viy  V.  Brown,  1  Cold.,  456;  Doyle  r.  Teas,  5  111.,  202;  Colyer  v. 
Finch,  5  H.  L.,  905;  Herrick  v.  Attwood,  2  De  G.  &  J.,  21.  A  man  spe- 
cially du-ected  to  another  for  information  is  bound  to  inquii-e  of  such 
person.     Wason  v.  Wareing,  15  Bear.,  151. 

*narrymanv.  CoDins,  18  Beav.,  19. 


12  THE   DIFFEKENT   KINDS   OF   XOTICE. 

to  the  premises  were  left  in  the  possession  of  the  vendor's 
solicitor,  though  the  muniments  of  title  are  usually  held  by 
the  owner,  or  one  claiming  a  hen,  possession  under  these 
circumstances  was  held  not  to  give  notice  of  any  lien  for 
which  the  deeds  were  held  b}''  the  sohcitor,  as  his  possession 
was  consistent  with  the  rights  of  the  vendor.^  So  also,  the 
fact  that  one  has  witnessed  the  signature  of  a  deed,  was 
decided  not  to  be  notice  to  the  Avitness  of  the  contents  of 
the  instrument.^  And  though  knowledge  of  a  avlLI  is  gen- 
erally held  to  charge  one  Avith  notice  of  the  devises  and  be- 
quests tlierein  contained,  it  is  decided  that  such  knowledge 
is  insufficient  to  impart  notice  of  the  particular  estates  of 
the  testator,  when  the  will  devises  all  the  estates  generall3\^ 

§  1 4.  Possession  lusiifflcient. —  In  Massachusetts,  where 
the  statute  requires  actual  notice  to  charge  purchasers, 
it  is  held  that  proof  of  open  and  notorious  occupation 
and  improvement  would  not  be  such  evidence  of  ownership 
in  the  occupant  as  to  make  it  the  duty  of  any  one  cognizant 
of  such  facts  to  make  further  inquiry  before  purchas- 
ing.* 

And  in  Lamb  v.  Pierce,'  it  is  held  not  only  that  such  open 
and  notorious  possession  and  improvement  would  not  be 
sufficient,  but  the  court  goes  further,  and  declares  that 
proof  of  facts  which  would  reasonably  put  a  purchaser  upon 
inquiry  would  not  fulfil  the  statutory  requirements.  This, 
however,  goes  so  far  beyond  the  most  recent  authority  cited 
in  support  of  the  doctrine  therein  declared,^  that  the  case 
may  be  regarded  as  unsupported  by  authority  even  in  that 
state,  so  far  as  it  goes  beyond  excluding  possession  as  evi- 
dence of  notice. 

iBogan  V.  Williams,  3  Younge  &  J.,  150. 

^Mocattav.  Murgatroyd,  1  P.  Wms.,  393;  Eancliffe  v.  Parkyns,  6  Dow., 
149;  Beckett  v.  Cai-dley,  1  Bro.  Ch.,  353. 

sRancliffe  v.  Parkyns,  6  Dow.,  149. 

■* Pomi-oy  ?7.  Stevens,  11  Mete,  244;  Parker  v.  Osgood,  8  AUen,  487; 
])ooley  V.  Wolcott,  4  Allen,  406 ;  Sibley  v.  Lefiangwell,  8  Allen,  584. 

5113  Mass.,  72. 

6  White  V.  Foster,  102  Mass.,  375. 


ACTUAL   NOTICE.  13 

§  15.  Title  Papers. —  The  case  of  White  v.  Foster,  re- 
ferred to  above,'  was  where  there  was  an  equitable  chiim- 
ant  to  an  interest  in  real  estate,  who  had  not  placed  his 
claim  within  the  protection  of  the  registry  laws.  The  res- 
ervation of  this  interest  was  mentioned  in  a  mortg-affe,  and 
the  property  subsequently  conveyed  to  a  purchaser  who  had 
no  other  notice  of  the  interest  reserved  than  the  fact  that  it 
was  mentioned  in  a  mortgage  subject  to  which  he  purchased. 
This  was  held  to  be  actual  notice,  and  the  court,  in  constru- 
ing the  statute,  declared  that  in  order  to  show  actual  notice 
it  was  not  necessary  to  prove  an  actual  exhibition  of  tlie 
deed.  This  must  be  taken  as  an  admission  of  the  efficacy 
of  facts  which  put  one  upon  inquiry ;  for  it  cannot  be  con- 
tended that  the  subsequent  purchaser  in  this  instance  was 
expressly  notified  of  the  outstanding  equity,  by  the  recitals 
in  an  instrument  affecting  his  title,  merely  because  he  had 
notice  of  such  instrument.  The  only  ground  upon  which 
he  could  be  charged  with  actual  notice  was  that,  having 
notice  of  the  mortgage,  ordinary  prudence  dictated  that  he 
should  examine  it  with  a  view  to  gaining  a  knowledge  of 
its  contents.- 

§  16.  Possession  Held  Sufficient  Evidence  of  Actual 
Notice. —  The  statute  of  the  state  of  Missouri  provides 
that  instruments  affecting  the  title  to  real  estate  shall 
not  be  valid,  except  between  the  parties,  and  such  as  have 
actual  notice  thereof,  until  deposited  with  the  recorder  for 

'  Supra,  §  14,  n.  3. 

2Wormley  V.  Wormley,  8  Wheat.,  431;  Oliver  v.  Piatt,  3  How.,  333; 
Neale  v.  Hagtlu-op,  3  Bland.,  551 ;  Christmas  v.  Mtchell,  3  Ii-ed.  Eq.,  535 ; 
Rogers  V.  Jones,  8  N.  H.,  264;  Griffiths.  Griffith,  1  Hoff.  Ch.,  153;  Mason 
V.  Paine,  Walker's  Ch.,  453;  Hackwith  v.  Damron,  1  Monr.,  235;  Van 
Dorenv.  Robinson,  16  N.  J.  Eq.  256;  Rutter  v.  BaiT,  4  Ohio,  446;  Gordon 
V.  Sizer,  39  Miss.,  805;  Surman  v.  Barlow,  2  Edm.,  167;  Sheldon  v.  Cox, 
2  Edni.,  224;  Taylor  v.  Baker,  5  Price,  306;  Moore  v.  Bennett,  2  Ch.  Cas., 
246;  Bath  &  Montague's  Case,  3  Ch.  Cas.,  110;  Palmer  v.  Wheeler,  2 
Ball.  &  B.,  18;  Malpas  v.  Acldand,  3  Russ.,  273;  Roddy  r.  Williams,  8 
Jones  &  L.,  1 ;  Hope  v.  Liddell,  21  Beav.,  183 ;  Cox  v.  Coventon,  31  Beav., 
378;  Steedman  v.  Poole,  16  L.  J.  Ch.,  349;  Clements  v.  WeUes,  L.  R.,  1 
Eq.,  200;  Tanner  v.  Florence,  1  Ch.  Cas.,  259. 


14  THE    DIFFEKENT    KINDS    OF    NOTICE. 

record.'  This  language  of  the  statute  is  construed  by  the 
supreme  court  of  that  state  to  mean  that  any  fact  from 
which  a  jury  may  infer  actual  notice  would  be  admissible 
in  evidence  to  establish  that  fact.  This  species  of  notice  is 
defined  as  being  either  knowledge,  or  consciousness  of  hav- 
ing the  means  of  knowledge,  although  he  may  not  use 
them ;  ^  and  open,  notorious  possession,  under  claim  of 
ownership,  by  the  party  holding  adversel}^  to  the  subse- 
quent purchaser,  is  regarded  as  sufficient  to  place  the  means 
of  knowledge  within  his  reach,  and  from  such  possession 
the  jury  might  infer  that  the  subsequent  purchase  was 
made  mth  either  full  knowledge  or  voluntary  ignorance  of 
the  adverse  claim.'  The  erection  of  visible  structures  upon 
land  is  sufficient  to  give  notice  of  the  right  or  claim  of 
right  under  Avhich  such  structm-es  are  erected,  so  far,  at 
least,  as  to  make  it  the  duty  of  any  one  contemplating  a 
purchase  of  the  land  to  inquire  concerning  the  claim.* 

§  1  7.  Purchasers  to  Tse  Diligence. —  In  Cambridge  Val- 
ley Bank  v.  Delano,'^  the  doctrine  of  actual  notice  by  im- 
plication from  circumstances  is  very  comprehensively  and 
fully  set  forth,  as  between  adverse  claimants  to  real  estate. 
The  most  conspicuous  fact  in  this  case  was  the  recital  in  an- 
tecedent title  papers  of  the  grantor.  It  was  there  held  that 
"  where  a  purcliaser  has  knowledge  of  any  fact  sufficient 
to  put  a  prudent  man  upon  an  inquiry,  which,  if  prosecuted 
with  ordinary  diligence,  would  lead  to  actual  notice  of  some 
right  or  title  in  conflict  with  that  he  is  about  to  purchase,  it 

iWag.  Stat.,  277,  §26. 

2 Speck  V.  Riggin,  40  Mo.,  405:  Mauijin  v.  Emmons,  47  Mo.,  304;  Rob- 
erts V.  Mosley,  64  Mo.,  507. 

^Vaughan  v.  Tracy,  22  Mo.,  415.  See  post,  ch.  IV;  see,  also,  Parker 
V.  Kane,  4  Wis.,  1,  where  notorious  acts  of  ownersliip  are  held  to 
amount  to  notice.    Eeed  v.  Gannon,  50  N.  Y.,  345. 

^Raritan,  etc.,  Co.  v.  Veghte,  21  N.  J.  Eq.,  463;  Randall  v.  Silver- 
thorne,  4  Pa.  St.,  173;  Hoy  v.  BramhaU,  19  N.  J.  Eq.,  563;  Hervey  v. 
Smith,  22  Beav.,  299;  Paul  v.  Connersville,  etc.,  R.  Co.,  51  Ind.,  527; 
post,  §  273  et  seq. 

5  48N.  Y.,  326. 


ACTUAL    NOTICE.  15 

is  liis  duty  to  make  the  inqiiiiy,  and  if  lie  does  not  make 
it,  he  is  guilty  of  bad  faith  or  negligence  to  such  an  extent 
that  the  law  will  presume  that  he  made  it,  aijd  will  charge 
hmi  with  the  actual  notice  he  would  have  received  if  he 
had  made  it."  The  same  doctrine  is  also  supported  by 
numerous  authorities  in  this  and  other  states.' 

§18.  Purchaser  of  Equitable  Interest. — Where  one 
purchases,  with  notice  of  the  fact  that  the  legal  title  to  the 
property  is  in  some  one  else  than  his  grantor,  he  is  thereby 
put  upon  inquiry  as  to  the  nature  and  extent  of  his  grant- 
or's title,  and  if  such  inquiries  would  lead  to  knowledge  of 
circumstances  affecting  the  title,  he  will  be  bound  as  by 
actual  notice  of  such  facts.^ 

§  19.  Teiitlor's  Lien. —  So  when  the  adverse  claim  is 
a  vendor's  lien  for  the  unpaid  purchase  money,  notice  to 
the  purchaser  that  the  title  passed  "without  actual  payment 
of  the  price  agreed  upon,  although  the  deed  contains  an  ac- 
knowledgment of  full  payment,  will  be  sufficient  to  put 
him  upon  inquiry  as  to  that  fact,  and  failing  to  exercise  rea- 
sonable diligence  to  ascertain  whether  there  has  been  a  sub- 
sequent payment,  he  will  be  charged  with  actual  notice  of 
what  remains  unpaid,  and  will  hold  the  title  subject  to  the 
prior  hen.* 

§  30.  Purchaser  from  Mortgagee. —  So  also  the  fact  that 
a  mortgage  appears  to  have  been  discharged  by  a  person 
other  than  the  mortgagee  has  been  held  sufficient  to  excite 
inquiry  as  to  the  reason  of  the  unusual  circumstance,  and 
the  purchaser,  with  knowledge  of  such  fact,  would  be  bound 

iMajsor,  etc.,  v.  Williams,  6  Md.,  235;  Price  v.  McDonald,  1  Md.,  403; 
Leiman's  Esfate,  32  Md.,  225;  BlatcWey  v.  Osborn,  33  Corni.,  226;  Nute 
V.  Nute,  41  N.  H.,  60;  Wan-en  v.  Sweet,  31  N.  H.,  332;  Maupin  v.  Em- 
mons, 47  Mo.,  304;  Nelson  v.  Sims,  1  Cush.  (Miss.),  383;  EusseU  v.  Pet- 
ree,  10  B.  Mon.,  184;  Howard  Ins.  Co.  v.  Halsey,  4  Sandf.,  565;  S,  C, 
8  N.  Y.,  271 ;  siij)m,  §  11,  note;  post,  §  307  et  seq. 

2 Sergeant  v.  IngersoU,  7  Penn.  St.,  340;  S.  C,  15  Penn.  St.,  343; 
Bishop,  etc.,  v.  A  Copyholder,  Freem.  Ch.,  137. 

3  Parke  v.  Chad  wick,  8  W.  &  S.,  96;  Frail  v.  ElUs,  16  Beav.,  350. 


16  THE    DIFFERENT    KINDS    OF   NOTICE, 

by  knowledge  of  all  such,  further  facts,  affecting  the  title  to 
the  property,  as  the  inquiry  would  disclose.^ 

§21.  Notice  of  Trust. — Where  the  purchaser  had  knowl- 
edge that  the  property  had  been  purchased  by  persons 
who  were  executors  of  a  will,  and  mentioned  as  such  in 
one  of  the  deeds  forming  a  link  in  the  chain  of  title,  to- 
gether with,  knowledge  that  such  executors  held  in  trust  a 
large  estate  with  unlimited  authority  to  purchase  real  es- 
tate, this  was  held  sufficient  to  charge  the  purchaser  with 
notice  of  the  fact  that  the  property  purchased  was  held 
subject  to  the  trust,  upon  the  principle  that,  being  possessed 
of  knowledge  of  distinct  facts  affecting  the  title  of  his  con- 
templated purchase,  he  could  not  close  his  eyes  and  screen 
himself  under  the  plea  of  ignorance  of  other  facts  con- 
nected with  those  already  known  to  him.  Good  faith  ren- 
dered it  incumbent  upon  him  to  make  reasonable  inquiry, 
and  he  took  the  title  charged  with  the  trust  of  which  such 
inquiry  would  have  informed  him ;  -  and  where  the  land  had 
been  contracted  for  by  a  vendee  who  had  paid  part  of  the 
purchase  money  the  vendor  held  the  land  charged  with  a 
trust,  and  a  subsequent  purchaser  with  notice  would  hold 
subject  to  the  first  vendee's  lien.* 

§  22.  Purchaser  fi'om  lusolvent  Trustee. —  Knowledge 
of  the  insolvency  of  a  trustee  from  whom  a  conveyance 
is  received  in  satisfaction  of  the  personal  indebtedness  of 
such  trustee  would  be  sufficient  to  put  the  pm-chaser  upon 
inquiry  as  to  the  hona  fides  of  the  transaction,  and  in  equity 
he  would  be  considered  as  having  notice.* 

§  23.  Suspicious  Circumstances — Inadequacy  of  Price. 
Inadequacy  of  the  price  paid,  under  circumstances  other 

iSwarthout  v.  Curtis,  5  N.  Y.,  301. 

-'BlaisdeU  v.  Stevens,  16  Vt.,  179. 

s Stewart  v.  Wood,  63  Mo.,  252;  Cavagnaro  v.  Don,  63  Cal.,  227. 

*  Pendleton  v.  Fay,  2  Paige,  202.  Where  time  and  circumstances  of 
a  sale  by  trustees  suggest  a  breach  of  trust,  the  purchaser  is  put  upon 
inquiry.    Strougliill  v.  Anstey,  1  De  G.,  M,  &  G.,  635. 


ACTUAL    NOTICE.  IT 

wise  of  a  suspicions  character,  may  be  sufficient  to  excite 
inquiry.  When  there  is  a  strong  incentive  to  pass  the 
title  to  one  who  will  be  in  a  situation  to  assume  the  charac- 
ter of  an  innocent  purchaser,  the  gross  disproportion  of  the 
amount  paid  to  the  real  value  would  be  such  a  badge  of 
fraud  as  to  inform  the  purchaser  so  loudly  of  the  intended 
wrong  that  he  will  not  be  permitted  to  shelter  himself  behind 
th^e  fact  that  he  did  not  linoxo  of  the  defect  in  his  grantor's 
title.  As,  where  property  worth  two  or  three  thousand 
dollars  was  conveyed  for  a  consideration  of  $100  to  one 
whom  the  grantor  regarded  as  "friendly"  to  himself,  and 
there  was  no  other  explanation  of  the  unequal  transaction 
offered  by  the  parties  thereto  than  the  friendly  relations 
subsisting  between  the  grantor  and  grantee,  while  it  was 
in  evidence  that  the  property  in  the  hands  of  the  grantor 
was  subject  to  an  adverse  equitable  interest,  the  purchaser 
was  charged  with  notice.^ 

§24.  Mere  Inadequacy  of  Price. —  So,  where  a  bond 
and  mortgage  for  $8,000,  upon  which  $2,000  of  the  prin- 
cipal and  all  the  accrued  interest  had  been  paid,  was  trans- 
ferred for  only  three-fourths  its  actual  value,  and  the 
consideration  was  received  in  unsalable  goods  at  forty  per 
cent,  above  their  market  price,  with  no  intention  of  using 
or  disposing  of  them  in  the  regular  way,  but  with  a  view 
to  sending  them  to  an  auction  store,  these  circumstances 
were  held  sufficient  to  put  the  purchaser  upon  inquiry  as  to 
the  ownership  of  the  security.^  But  mere  inadequacy  of 
price  realized  at  a  sheriff's,  or  other  involuntary  sale,  would 
not  tend  to  put  the  purchaser  upon  inquiry,  for  reasons  too 
obvious  to  require  comment.' 

§25.  Relationship  between  the  Parties. —  The  fact 
that  the  grantor  was  the  father  of  the  grantee  was  held  to 
be  evidence  of  the  son's  knowledge  of  a  trust  subject  to 

iHoppin  V.  Doty,  25  Wis.,  578. 

2peabody  v,  Fenton,  3  Barb.  Ch.,  451;  Eck  v.  Hatcher,  58  Mo.,  235. 
'Stockett  V.  Taylor,  8  Md.  Ch.  Dec,  537;  Beadles  v.  Miller,  9  Bush, 
405. 

2 


IS  THE    DIFFERENT    KINDS    OF   NOTICE, 

wliicli  the  land  was  held  by  the  father,  and  properly  went 
to  the  jnry  to  enable  them  to  determine  that  fact.^  And 
where  an  insolvent  debtor,  pressed  by  his  creditors,  conveyed 
absolutely  all  his  jjroperty  to  his  son,  a  young  man  without 
property,  receiving  neither  payment  nor  security,  such  cir- 
cumstances were  held  to  proclaim  the  bad  faith  of  the  trans- 
action in  such  unmistakable  terms,  that  a  purchaser  from  the 
son,  with  notice  of  these  facts,  could  not  hold  against  a  pur- 
chaser at  a  sale  under  an  execution  against  the  father.- 

§26.  Notice  of  Partnership  Interest. —  It  has  been 
held  that  iiotice  that  the  propert}"  belongs  to  a  partnership 
is  sufficient  to  charge  it  in  the  hands  of  the  purchaser  with 
partnersliip  debts.'  But  it  has  been  elsewhere  decided  that 
a  purchaser  from  a  surviving  partner  who  held  the  property 
in  his  individual  name,  would  not,  by  mere  knowledge  that 
it  was  partnership  property,  be  charged  with  notice  of  the 
trust  under  which  his  grantor  held,  so  as  to  render  the  prop- 
erty in  his  hands  subject  to  the  partnershij)  debts.^  In  this 
latter  case,  however,  it  was  held  that  the  manner  of  the 
transfer  being  secret,  and  the  purchaser  knowing  that  the 
lirm  were  greatly  in  debt,  would  suffice  to  put  such  pur- 
chaser upon  inquiry.^ 

§  27.  luforniatiou  Siifflcieut  to  Put  Upon  Inquiry.— 
Notice  by  verbal   or  written  information  has   elsewhere 


iTrefts  V.  King,  18  Perm.  St.,  157;  Spurlock  v.  Sullivan,  36  Tex.,  511; 
Clark  V.  Drake,  63  Mo.,  354.  The  fact  that  plaintiff  was  related  to  the 
trustee,  together  with  his  knowledge  of  defendant's  j)ossession,  and  the 
inadequacy  of  the  price  paid,  was  held  sufficient  to  warrant  the  inference 
that  plaintiff  had  actual  notice  of  a  trust  in  favor  of  the  defendant. 
Roberts  v.  Mosley,  64  Mo.,  507;  Pliillips  v.  Bank  of  Lewiston,  18  Pa.  St., 
394;  DuBois  v.  Barker,  4  Hun,  80.  See  Hei-vey  v.  Smith,  22  Beav., 
299;  Davies  v.  Sear,  L.  R.,  7  Eq.,  427;  Paul  v.  Connersville,  etc.,  R.  Co., 
51  Ind.,  527. 

2  Ringgold  V.  Waggoner,  14  Ark.,  69. 

^Hoxie  V.  Carr,  1  Sumn,,  173;  Sigourney  v.  Munn,  7  Conn.,  324, 

^TilUnghast  v.  Champlin,  4  R.  I.,  173-4,  215;  Reynolds  v.  Ruckman,  35 
Mich.,  80. 

sFlagg  V.  Mann,  2  Sumn.,  486;  Du  Bois  v.  Barker,  4  Hun,  80. 


ACTUAL   NOTICE.  19 

been  considered,  for  the  most  part,  as  express  notice  ;^  but, 
as  there  intimated,  in  many  instances  the  information  is 
regarded,  on  account  of  the  source  from  which  it  comes,  as 
merely  sufficient  to  put  the  purchaser  upon  inquiry,  and  in 
some  cases  would  be  so  vague  and  uncertain  as  not  even  to 
amount  to  that.  However,  where  information  of  the  exist- 
ence of  a  patent  was  received  through  neighborhood  report, 
and  from  the  declaration  of  a  stranger  that  he  had  seen  it, 
this  was  held  sufficiently  certain  to  be  taken  in  connection 
vrith  knowledge  of  possession  and  cultivation  by  tenants 
of  the  patentee,  as  evidence  of  notice,  and  would  bar  the 
laying  a  warrant  upon  the  land  as  waste  and  unappropri- 
ated.2  And  where  a  mortgagee,  who  had  lost  the  instru- 
ment before  having  it  recorded,  informed  the  purchaser 
after  the  notes  so  secured  had  been  transferred  to  another, 
this  information  was  held  sufficient  to  put  the  party  upon 
inquiry  before  purchasing,  and,  failing  to  inquire,  the  mort- 
gaged property  was  bound  in  his  hands  for  the  debt.'  So, 
where  the  communication  came  from  a  stranger  who  had 
no  connection  whatever  with  the  title,  the  notice  was  held 
sufficient  to  charge  the  purchaser.^ 

§28.  Ditfereiit  Sources  of  Information. —  The  char- 
acter of  the  person  giving  unasked  advice  of  this  kind  is 
always  to  be  taken  into  consideration  in  estimating  the 
value  of  the  information.  His  relations  and  intimacy  with 
the  parties  from  whom  direct  information  might  naturally 
be  exjDected  to  come ;  his  connection  with  the  transaction, 
and  his  facilities  for  obtaining  knowledge,  as  well  as  the 
degree  of  knowledge  he  displays,  should  all  be  considered  be- 
fore the  party  contemplating  a  purchase  can  venture  with 
safety  to  utterly  disregard  his  advice,  or  act  upon  it  with- 
out further  inquiry.     J^otice  coming  from  a  friend  or  rela- 

1  Ante,  %Q  et  seq. 

2  Roberts  v.  Stanton,  3  Munf.,  129.  •  . « 

( 

3  Rowan  v.  Adams,  1  Sni.  &  M.  Ch. ,  45. 

^Currens  v.  Hart,  Hardin,  37;  Erickson  v.  Rafferty,  79  HI.,  209. 


20  THE    DIFFEEENT    KINDS   OF    NOTICE. 

tion  of  the  adverse  claimant  has  been  held  sufficient.' 
While  the  vague  reports  of  mere  strangers  have  been  held 
not  to  affect  the  conscience  of  the  purchaser.- 

§29.  Yague  Statements  Disregarded. —  Whatever  be 
the  source  of  the  information,  to  be  effectual  as  notice, 
either  express  or  implied,  it  must  amount  to  something 
more  than  a  vague  statement  that  the  vendor's  title  is  sub- 
ject to  an  equity,''  or  that  grantor  is  unable  to  make  a  good 
title.'*  Or,  coming  even  from  the  guardian  of  the  equitable 
claimant,  informing  the  party  that  he  will  purchase  at  his 
peril.-^  Such  wild  statements  as  these  could  not  put  the 
party  upon  inquiry,  for  the  reason  that  they  do  not  tend  to 
direct  his  attention  to  any  specific  source  of  knowledge ;  and 
it  is  contrary  to  reason  and  common  sense,  that  one  should 
be  prevented  from  purchasing  by  what  he  might  fairly  re- 
gard as  the  idle  gossip  of  busy-bodies.''  But  the  vice  of 
such  information  consists  quite  as  largely  in  the  uncertainty 
and  vagueness  of  its  statements  as  in  the  questionable 
som^ce  from  which  it  proceeds.  In  general,  it  is  essential 
that  the  communication  shall  have  some  connection  with 
the  subject  of  intended  purchase.     Notice  of  this  kind  has 

1  Ripple  V.  Ripple,  1  Rawle,  386;  MuUiken  v.  Graham,  72  Perm.  St., 
484;  Butcher  v.  Yocum,  61  id.,  168.  Information  from  vendor's  house 
agent  cannot  be  disi-egarded.  Lewis  v.  Bradford,  10  Watts,  67 ;  Lawton 
V.  Gordon,  37  Cal.,  202,  205,  206. 

2  Jaques  v.  Weeks,  7  Watts,  261. 

spittman  v.  Sofley,  64  111.,  155;  Massie  v.  Greenhow,  2  Patt.  6c  H., 
255. 

•«  Chicago  r,  Witt,  75  lU.,  211.  See  Loughridge  v.  Boland,  52  IMiss., 
546;  Reynolds  v.  Ruckman,  35  Mich.,  80;  Lambert  r.  Newman,  56  Ala., 
623;  Parker  v.  Fay,  43  Miss.,  260;  Wailes  v.  Cooper,  24  IVIiss.,  208; 
Butti-ick  V.  Holden,  13  Met.,  355;  Curtis  v.  Blair,  4  Cush.  (]\Iiss.),  309; 
MiUer  v.  Cresson,  5  Watts  &  S.,  284;  Woods  v.  Farmere,  7  Watts,  382; 
Epley  V.  Witherow,  7  Watts,  163;  Feeblest;.  Reading,  8  Serg.  &  R.,  484; 
WUson  V.  McCuUough,  23  Pa.  St.,  440;  Butler  v.  Stevens,  26  Me.,  484; 
Lamont  v.  Stimson,  5  Wis.,  443;  Churcher  v.  Guernsey,  39  Pa.  St.,  84; 
Maul  17.  Rider,  59  Pa.  St.,  167;  Shepard  v.  Shepard,  36  Mich.,  173. 

5  Jolland  V.  Stainbridge,  3  Ves.  Jr.,  478. 

e  Woodworth  v.  Paige,  5  O.  St.,  70. 


ACTUAL    NOTICE.  21 

been  held  insufficient  to  charge  the  conscience  of  the  pur- 
chaser when  given  in  connection  witli  a  prior  transaction/ 
§  30.  Degree  of  Certainty  Required. —  But  while  it  is 
essential  that  there  should  be  reasonable  certainty  as  to  the 
facts  communicated,  it  is  not  to  be  understood  that  there 
should  ba  a  full  description  of  the  outstanding  equity.  It 
suffices  if  the  information  is  certain  within  the  rule,  id  cer- 
ium est  quod  certum  reddi potest.  If  it  directs  the  purchaser 
to  where  he  can  become  fully  informed  of  the  particulars, 
he  will  be  affected  by  it,  if  he  fails  to  pursue  his  inquiries 
in  the  direction  indicated.^  Beins:  referred  to  others  for  in- 
formation,  the  purchaser  is  bound  to  inquire  of  the  person 
to  whom  he  is  sent.^  And  merely  asking  one  of  the  parties 
to  a  transaction  for  information  does  not  excuse  the  pur- 
chaser from  inquiring  fm'ther,  when  the  one  inquired  of  re- 
fuses to  respond  to  the  inquiry,  and  the  purchaser  has 
reason  to  believe  that  there  are  others  Avho  are  able  and 
willing  to  supply  the  information/  And  where  the  infor- 
mation is  merely  inaccurate  as  to  the  particular  manner  in 
which  the  subject  of  contemplated  purchase  is  affected  by  a 
certain  instrument,  this  circumstance  will  not  excuse  the 
purchaser  from  further  inquiry.     He  will  be  charged  with  a 

1  Boggs  V.  Varner,  6  Watts  &  Serg. ,  469 ;  Meehan  v.  Williams,  48  Pa. 
St.,  238;  Fuller  v.  Bennett,  2  Hare,  394;  Bank  of  Louisville  v.  Curren, 
36  la.,  555;  Lowtliers  v.  Carlton,  2  Atk.,  242.  See,  also,  General  Steam, 
etc.,  Co.  V.  Rolt,  6  C.  B.,  N.  S.,  550;  Thornber  v.  Sheard,  13  Beav., 
589;  Cobbett  v.  Brock,  20  Beav.,  524;  Berdoe  v.  Dawson,  34  Beav.,  603; 
Rhodes  v.  Cooke,  4  L.  J.  Ch.,  147. 

-'Jaques  v.  Weeks,  7  Watts,  266;  Eply  v.  Witherow,  id.,  163;  Spof- 
ford  V.  Weston,  29  Me.,  140;  Bartlett  v.  Glascock,  4  Mo.,  62;  Barnes 
V.  McClinton,  3  Penn.,  67;  Water,  etc.,  Co.  v.  Vechte,  21  N.  J.  Eq.,  463; 
Williamson  v.  Brown,  15  N.  Y.,  354;  Jackson  v.  Caldwell,  1  Cow., 
622;  Hawley  v.  Cramer,  4  Cow.,  717;  Parish  v.  Brooks,  4  Brews.,  154; 
Nelson  v.  Sims,  1  Cush..  383;  Kerns  v.  Swope,  2  Watts,  75;  Blatchley  r. 
Osborn,  33  Conn,,  226 ;  Bellas  v.  McCarty,  10  Watts,  13 ;  Buntmg  v.  Ricks, 
3  Dev.  &  Bat.  Eq.,  130;  Gibbs  r.  Cobb,  7  Rich.  Eq.,  54. 

3  Wason  V.  Wareing,  15  Baav.,  151 ;  Bainbridge  v.  Moss,  8  Jur.,  N.  S., 
58;  Wilson  v.  Hart,  2  H.  &  M.,  551. 

< Bainbridge  r.  Moss,  3  Jur.,  N.  S.,  58. 


22  THE    DIFFERENT   KINDS    OF    NOTICE. 

knowledge  of  all  the  facts  he  might  have  learned  by  follow- 
ing up  the  line  of  investigation  suggested  by  the  notice  re- 
ceived, with  diligence.^  But  although  notice  of  a  lease 
will  charge  the  purchaser  with  notice  of  its  contents,  it  will 
only  be  of  usual  covenants,  and  not  such  as  are  unusual  and 
extraordinary,- 

§31.  Notice  to  an  Agent. —  Generally,  when  the  doc- 
trine of  notice  to  agents  is  referred  to  in  the  books,  it  is 
mentioned  as  constructive  notice.*  But  it  seems  to  be  gov- 
erned to  a  considerable  extent  by  the  rules  appMcable  to 
actual  notice.  In  the  case  of  Barnes  v.  McChnton,'*  Gibson, 
C.  J.,  in  rendering  the  opinion  of  the  court  says :  *  *  * 
"  The  purchaser  had  actual  knowledge,  through  his  counsel, 
of  the  contents  of  his  paper.  *  *  *  Xotice  to  the  counsel, 
in  the  same  transaction,  being  presumptive  notice  to  the 
client."  ^ 

§  32.  Principal  Not  Benefited  by  Agent's  Frand.— To 
hold  that  purchasers  could  never  be  affected  with  actual 
notice,  through  an  agent  or  attorney,  would  be  to  afford 
extraordinary  facilities  to  those  who  Avished  to  take  fraud- 
ulent advantage  of  the  statutes  requiring  actual  notice  of 
equitable  interests,  or  unrecorded  instrmnents  affecting  titles 
to  real  estate,  in  order  to  charge  the  purchaser.  If  the 
agent  or  attorne}^  to  Avhom  Avas  intrusted  the  duty  of  in- 
vestigating the  title,  and  preparing  instruments  of  convey- 

1  Gibson  v.  Ingo,  6  Har.,  113;  Att'y  Gen'l  v.  Jones,  3  Jur.,  369;  Taylor 
V,  Baker,  5  Price,  30G;  Jackson  v.  Rowe,  3  Sim.  &  St.,  473;  Steedman 
V.  Poole,  16  L.  J.  Ch.,  349;  FaiTOw  v.  Rees,  4  Beav.,  18;  Penny  v. 
Watts,  1  Macn.  &  G.,  150;  MitcheU  v.  Steward,  35  L.  J.  Ch.,  393;  Abbot 
v.Gerabty,  4  Jr.  Ch.,33;  Hinde  v.  Vattier,  1  McLean,  110;  7  Pet.,  352; 
Buck  V.  Paine,  50  jyiiss.,  648;  McLeod  v.  Fii'st  Nat.  Bank,  43  Miss.,  99. 

2  Van  V.  Corpe,  3  Mylne  &  K.,  369;  Flight  v.  Barton,  3  Mylne  &  K., 
283. 

3  See  post,  ch.  IX,  sec.  673  et  seq. 

*3Penn.  67;  Stanley  v.  Chamberlain,  39  N.  J.  L.,  565;  Fiske  v. 
Potter,  3  Keyes,  64. 

5  Kennedy  v.  Green,  3  M.  &  K.,  699;  Greenfield  v.  Edwards,  2  De  G., 
J.  &  S.,  583. 


ACTUAL    NOTICE.  23 

ance,  should  be  conveniently  blind  to  whatever  promised  to 
disclose  an  adverse  claim  outside  of  the  public  records,  or 
conveniently  dumb  in  regard  to  such  disclosures  when  made, 
his  principal  might  be  effectually  shielded  from  the  conse- 
quences of  the  fraud  perpetrated  by  his  representative.  It 
may  not  be  strictly  logical  to  say  that  "  notice  to  an  agent 
is  actual  notice  to  the  principal."  But  in  the  event  of  this 
question  arising,  under  such  a  statute,  it  will  probably  be 
held  a  fraud  upon  the  owner  of  the  equity,  or  unrecorded 
title,  for  the  agent  to  conceal  the  knowledge  acquired  in 
the  course  of  his  principal's  employment,  and  the  principal 
will  not  be  permitted  to  profit  by  his  agent's  fraudulent 
act.^ 

§  33.  How  Principal  AiFected  by  Notice  to  Agent. — 
It  may  therefore  be  confidently  stated  that  while  notice  to 
an  agent  is  onl}^  regarded  as  the  legal  equivalent  of  per- 
sonal notice  to  the  principal  represented  in  the  transaction 
in  which  the  agent  is  engaged,  because  of  the  legal  pre- 
sumption, which  is  conclusive  upon  the  principal,  that  the 
agent,  in  pursuance  of  his  duty,  will  convey  the  informa- 
tion to  his  principal;  still,  notice  to  the  agent  is  more  than 
constructive  notice  to  the  principal.  Even  where  actual 
notice  is,  by  statute,  alone  suflBcient  to  affect  purchasers,  the 
fact  that  actual  notice  is  brought  home  to  the  one  who  rep- 
resents such  principal  in  the  transaction  would  be  as  bind- 
ing upon  him  as  though  he  had  been  personally  notified. 
And  if  the  notice  comes  to  the  agent  in  the  shape  of  knowl- 
edge of  circumstances  which  should  put  a  man  of  ordinary 
prudence  upon  inquiry,  the  principal  will,  by  implication, 
be  charged  with  notice  as  though  he  had  been  personally 
cognizant  of  the  facts  which  challenged  inquiry  from  the 
agent.2 

§34.  Purchase  .After  Fruitless  Inquiry. —  But  where 
notice  is  implied  from  knowledge  of  facts  which  point 
with  reasonable  certainty  to  the  means  of  ascertaining 
the  truth  of  the  matter  involved,  proof  that  inquiries  have 

1  See  post,  ch.  IX,  Part  II. 

2  Bank  of  United  States  v.  Davis,  3  Hill,  451. 


24:  THE   DIFFERENT   KINDS    OF   NOTICE. 

been  prosecuted  with  reasonable  diligence,  and  the  pur- 
ehaser  is  led  to  believe  in  the  absence  of  any  adverse  claim/ 
or  even  fails  to  obtain  any  further  or  more  reliable  informa- 
tion than  that  which  excited  his  inquiries,-  he  may  purchase 
with  securit}^  The  extent  to  which  inquiry  should  be 
carried  must  depend  to  a  considerable  degree  upon  the 
character  of  the  information  received  by  the  purchaser. 
Where  one  has  received  notice  of  the  existence  of  an  instru- 
]nent  which  may  or  may  not  affect  the  title,  the  notice,  to 
charge  him  with  a  knowledge  of  its  contents,  shoidd  be  suffi- 
ciently explicit  to  connect  the  instrument  in  some  way 
with  the  matter  in  which  he  is  interested.  He  is  not  to  be 
charged  with  notice  of  the  contents  of  any  such  instrument 
by  his  mere  failure  to  inquire,  when  such  failm^e  is  perfectly 
consistent  with  good  faith,  ordinary  diligence,  and  a  gen- 
eral disposition  to  fair  dealing.'' 

§35.  Information  Allaying  Suspicion. —  So  where  the 
attaching  creditor  was  informed  by  the  debtor  that  he 
had  ah-eady  executed  a  deed  to  another,  but  that  such  deed 
had  neither  been  acknowledged  nor  delivered,  and  in  corrob- 
oration of  the  latter  statement  exhibited  the  deed,  which 
was  still  in  his  own  possession,  it  was  held  that  the  creditoi- 
might  rely  upon  the  truth  of  such  statement  without  further 
inquiry  or  investigation.^  And  if  the  information,  coming 
from  the  party  supposed  to  be  interested  adversely  to  the 

1  Hudson  V.  Warner,  2  H.  &  G.,  415. 

2  Jackson  v.  Van  Valkenburgh,  8  Cow.,  260. 

3Kenney  v.  Bro-mie,  3  Eigd.  P.  C,  512;  West  v.  Reid,  2  Ha.,  249; 
Harryman  v.  ColUns,  18  Beav.,  91;  Cox  v.  Coventon,  31  Beav.,  378: 
McQueen  v.  Farquhar,  11  Ves.,  482;  Perry  v.  HoU,  2  De  G.,  F.  &  J., 
38;  Dodds  v.  Hills,  2  H.  &  M.,  424;  Jones  v.  Smith,  1  Hare,  43;  Ponder 
V.  Scott,  44  Ala.,  241. 

■«  Rogers  v.  Jones,  8  N.  H.,  264 ;  Re  Bright's  Trusts,  21  Beav.,  430 ;  Jones 
r.  Smith,  1  Hare,  43;  S.  C,  1  Pliil.,  244;  Wilson  .v.  Short,  6  Hare,  366; 
Vignolles  v.  Bowen,  12  Ir.  Eq.,  194;  Smith  v.  Reese,  etc.,  Co.,  L.  R.,  2 
Eq.,  264;  Grosvenor  v.  Green,  28  L.  J.  Ch.,  173;  McCuUoch  v.  Gregory, 
1  Kay  &  J.,  286;  Stewart's  Case,  L.  R.,  1  Ch.  App.,  574;  Jones  v.  Will- 
iams, 24  Beav.,  47;  Espin  v.  Pemberton,  3  De  G.  &  J.,  547;  Buttrick  v. 
Holden,  13  Met.  (Mass.),  355;  Curtis  v.  Blair,  4  Cush.  (Miss.),  309;  Rogers 
V.  Wiley,  14  HI.,  65. 


ACTUAL   NOTICE.  25 

vendor,  is  in  effect  either  an  express  or  implied  denial  of  his 
own  right  or  title,  the  vendee  may  rely  upon  such  informa- 
tion, and  will  be  protected  in  his  pm'chase.^ 

§  36.  The  Effect  of  Reliance  on  Information  from 
Doubtful  Sources.  —  But  where  the  pm'chaser  and  his 
agent  had  been  advised  of  a  contract  for  the  sale  of  the 
land  by  the  agent  of  the  prior  purchaser,  which  agent  had 
been  prosecuted  for  embezzhng  funds  in  the  transaction, 
and  subsequently  informed  the  last  purchaser  that  the  con- 
tract with  his  principal  was  broken  off,  it  was  lield  that 
the  subsequent  pui'chaser  had  no  right  to  rely  upon  such 
statemQnts  from  so  doubtful  a  source.^ 

§  36a.  A  Practical  Tiew  of  the  Distinction  between 
Actual  and  Constructive  Notice. —  The  only  reason  for 
treating  that  kind  of  notice  which  is  called  actual  sepa- 
rately from  that  which  is  denominated  constructive  is  that 
the  general  principles  of  notice  may  be  appealed  to  in 
cases  where  the  law  recognizes,  as  controlling,  only  notice 
of  the  former  class.  When  the  rights  of  parties  Utigant 
may  be  affected  by  notice  generally,  it  is  of  little  conse- 
quence whether  it  be  of  the  one  kind  or  the  other.  There 
is  a  distinction  between  the  two  which  in  a  proper  case  will 
be  found  of  vital  importance.  As,  for  example,  when  the 
right  of  recovery  of  an  indorser  of  negotiable  paper,  received 
in  the  ordinary  course  of  business  before  maturity,  is  ques- 
tioned by  the  payer,  upon  the  ground  that  it  was  purchased 
by  the  holder  with  notice  of  facts  which  would  impeach  its 
vaHdity  between  antecedent  parties.  The  decided  weight 
of  authorit}^  is  in  support  of  the  doctrine  that  the  purchas- 
er's rights  can  only  be  affected  by  actual  notice  of  such 

iMoGeheei'.Gindrat,  20  Ala.,  95;  Pearson  v.  Morgan,  2  BroAvn,  Ch., 
353;  Burrows  v.  Locke,  10  Ves.,  470;  Barry  v.  Croskey,  2  Johns.  &  H., 
21;  Ibbotsonr.  Rhodes,  2  Vern.,  554;  Lee  v.  Howlett,  2  Kay  &  J.,  531; 
SUm  %\  Ci-oucher,  1  De  G.,  F.  &  J.,  518;  Bridge  v.  Beadon,  L.  R.,  3  Eq., 
664;  infra,  §  36,  and  cases  cited. 

-'MuUiken  v.  Graham,  72  Pa.  St.,  484;  Price  v.  McDonald,  1  Md.,  403; 
Hudson  V.  Wainer,  2  Hai-.  &  G.,  415;  Russell  v.  Petree,  10  B.  Mon.,  184; 
Littleton  v.  Giddings,  47  Tex.,  109. 


26  THE    DIFFERENT    KINDS    OF    NOTICE. 

facts.'  Ilere  the  question  of  notice  is  strictly  one  of  fact, 
and  cannot  be  determined  by  tlie  rules  of  constructive  notice, 
properly  so  called.-  But  this  essential  distinction  cannot  be 
made  for  practical  purposes,  either  where  actual  notice  is 
required  b}"  statute,  or  where  it  is  demanded  by  a  rule  of 
the  common  law,  by  laying  down  an  inflexible  rule  of  clas- 
sification, that  shall  clearly  distinguish  notice  of  the  one 
kind  from  the  other  for  all  cases  where  the  distinction  is 
material.  It  cannot  be  said  that  a  purchaser  can  never  be 
charged  with  actual  notice,  when  the  circumstances  make 
out  a  case  of  constructive  notice.  Although  it  be  strictly 
true  that  actual  notice  is  a  question  of  fact,  it  is  equally 
true  that  it  may  be  established  by  the  aid  of  conclusive  pre- 
sumptions. The  distmction  is  between  actual  and  construct- 
ive notice,  and  not  between  actual  hnowledge  and  constructive 
notice.  The  difference  in  meaning  between  hioicled/je  and 
notice  must  not  be  overlooked,*  for  it  is  equally  important 
with  the  distinction  between  the  different  kinds  of  notice. 
The  fact  to  be  established,  when  the  case  requires  jDroof  of 
actual  notice,  is  that  the  party  acquired  his  pretended  rights 
with  notice,  and  this  may  be  true,  although  the  purchase 
may  have  been  made  in  actual  ignorance  of  the  facts  of 
which  knowledge  is  imputed  to  the  pm'chaser.* 

1  Post,  §  84  ef  seq. 

2 Goodman  v.  Simonds,  20  How.,  343;  post,  §  85. 

^  Supra,  §§3,  4. 

•*This  subject  will  be  further  considered  in  connection  with  Con- 
structive Notice.  {Post,  §  43  et  seq.)  And  examples  wUl  be  given  of 
the  application  of  the  principles  herein  contended  for,  in  connection  with 
notice  by  Registration,  Title  Papers,  etc.    Post,  eh.  Ill  et  seq. 


CONSTBUCTIVE   NOTICE,  27 


II.    CONSTRUCTIYE   KoTICE. 

§  37.  Definitions. 

38.  Held  Same  as  Implied  Notice. 

39.  Constructive  Notice  Prescribed  by  Statute. 

40.  Distinction  between  Different  Kinds  of  Notice. 

41.  Different  Kinds  of  Constructive  Notice. 

42.  Infei'ence  of  Law. 

42a.  Same  —  Distinction  between,  and  Inference  of  Fact. 

43.  Contents  of  Writing  Kno^vn  to  Party  Executing  the  Same. 

44.  Possession  as  Constructive  Notice. 

45.  Purchaser  Pendente  Lite. 

46.  Recitals  in  Title  Paper. 

47.  Possession  of  Deeds. 

§37.  Defiuitious.  —  Constructive  notice  is  defined  by 
Chief  Baron  Eyee  as  "  in  its  natm^e  no  more  than  evidence 
of  notice,  the  presumptions  of  which  are  so  violent  that  the 
court  will  not  allow  of  its  beino-  controverted."  ^  Judo-e 
Stoey  defines  it  as  "  knowledge  miputed  by  the  court  on 
presumption,  too  strong  to  be  rebutted,  that  the  knowledge 
must  have  been  communicated."  - 

§  38.  Held  Same  as  Implied  Notice. —  These  defini- 
tions exclude  all  those  cases  where  the  legal  presumption  of 
notice  is  subject  to  rebuttal  or  explanation.  Chancellor  Kent, 
however,  says,  "  I  hold  him  chargeable  with  constructive 
notice,  or  notice  in  law,  because  he  had  information  suffi- 
cient to  put  him  upon  inquiry."  ^  Whatever  presmnptions 
of  notice  might  arise  from  information  sufficient  to  put  the 
party  upon  inquiry  could  be  explained  away  by  showing 
that,  notwithstanding  dihgent  inquiry  was  made,  it  proved 
fruitless  of  residts,  or  the  imputation  of  knowledge  may  be 
rebutted  by  proof  that  the  party  thus  sought  to  be  charged 
was  misled,  and  lulled  into  security  by  countervaihng  cir- 
cumstances, or  a  denial  of  the  information  by  which  inquiry 

1  Plumb  V.  Fluitt,  2  Anstr. ,  432 ;  Kennedy  v.  Green,  3  M.  &  K.,  699, 719 ; 
WMe  V.  Gibson,  1  H.  of  L.  Cas.,  605. 
2Story*sEq.  Jur.,  §  399. 
sSterryu.Axden,  1  John.  Ch.,  261. 


28  THE    DIFFERENT    KINDS    OF    NOTICE. 

was  originally  excited.  There  is  another  definition  more 
comprehensive  in  its  scope  than  either  of  the  preceding,  and 
is  laid  down  as  follows :  "  Constructive  notice  is  a  legal  in- 
ference of  notice  of  so  high  a  nature  as  to  be  conclusive, 
unless  disproved,  and  is  in  most  cases  insusceptible  of  ex- 
planation or  rebuttal  by  evidence  that  the  purchaser  had 
no  actual  notice,  and  believed  the  vendor's  title  to  be 
good."  ^ 

§  39.  Constructive  Notice  Prescribed  by  Statute. — 
AYhile  the  foregoing  definitions  of  this  title  are  doubt- 
less sutficiently  full  and  comprehensive  in  the  connection 
in  which  they  are  emplo3^ed,  the}''  do  not  convey  a  dis- 
tinct idea  of  that  kind  of  notice  which  is  constructive,  as 
distino-uished  from  that  which  is  actual,  without  reference 
to  the  connection ;  for  this  term  includes  not  only  the  evi- 
dence of  notice  where  the  presumptions  are  ^dolent,  or  the 
imputation  of  knowledge  from  presumptions  too  strong  to 
be  rebutted,  that  such  knowledge  has  been  communicated, 
or  a  legal  inference  of  notice  of  a  high  character ;  but  it 
also  embraces  that  which  is  made  conclusive  upon  the  party 
notified  by  the  provisions  of  a  statute,  without  regard  to 
the  evidence  of  actual  notice,  or  the  actual  probabilities  of 
the  communication  of  the  knowledge  imputed. 

§  40.  Distinction  between  Different  Kinds  of  Notice. — 
One  of  the  distinguishing  features  between  these  two  kinds 
of  notice,  which  seem  to  glide  imperceptibly  into  each 
other,  is  that  when  the  facts  upon  which  the  presumption 
is  founded  have  been  ascertained,  the  question  of  construct- 
ive notice  is  always  for  the  court,^  while  the  question  of 

iLead.  Cas.  Eq.,  vol.  11,  part  1,  77  (Am.  note).  The  more  this  defini- 
tion is  examined  the  less  satisfactory  it  seems.  A  legal  presumption 
capable  of  being  disproved  seems  a  non  sequitur.  Story's  definition  is 
better.     Infra,  §  40. 

2Bu-dsall  V.  Russell,  29  N.  Y.,  220.  It  is  at  least  questionable  whether 
all  the  confusion  upon  this  subject  may  be  avoided  by  observing  the  dis- 
tinction above  laid  down.  While  I  shall  always  maintain  that  posses- 
sion is  a  fact  from  which  actual  notice  may  be  inf eiTed,  I  shall  not  deny 
that  it  may  furnish  a  foundation  for  that  conclusive  presumption  which 


CONSTKUCTIVE   NOTICE.  *      29 

actual  notice  is  frequently  submitted  to  the  jury,  together 
with  the  evidence  from  which  the  inference  of  fact  is  drawn, 
without  charge  or  instruction  as  to  the  weight  of  the  evi- 
ls an  essential  element  of  constructive  notice.  Tlie  same  is  true  of  no- 
tice derived  from  title  papers  in  the  purchaser's  possession,  or  consti- 
tuting essential  links  in  a  chain  of  title  to  property  owned  by  him.  At 
a  certain  stage  of  tliis  controversy  between  prior  and  subsequent  pur- 
chasers, possession  may  be  regarded  as  notliing  more  than  evidence  of  no- 
tice. At  another  stage  of  the  same  controversy,  it  becomes  conclusive 
either  as  evidence  of  actual  notice,  or  as  a  presumption,  or  implica- 
tion of  notice.  Thus,  suppose  it  is  shown  that  the  prior  pm-chaser  was 
in  actual  possession  of  the  premises  at  the  time  the  same  were  conveyed 
to  the  subsequent  vendee.  The  latter  is  not  concluded  by  this  showing. 
He  may  overcome  the  inference  by  evidence  that  he  made  dihgent  in- 
quiiy  of  the  party  in  possession,  and  gained  no  knowledge  of  the  latter's 
claim ;  or,  that  such  possession  was  consistent  with  the  terms  of  an  in- 
strument of  record,  of  which  the  subsequent  purchaser  had  personal 
knowledge  and  upon  wlrich  he  was  led  to  rely.  There  are  numerous 
other  modes  of  overcoming  the  effect  of  possession  as  an  inference  of 
notice ;  but  evidence  that  merely  denies  all  knowledge  or  information  of 
such  possession,  or  the  claim  of  title  under  which  the  occupant  held  the 
premises,  would  not  tend  in  the  least  to  this  end.  Before  a  denial  o^ 
knowledge  of  a  fact  of  tliis  kind  can  be  received  and  estimated  as  of 
any  value  whatever,  it  must  appear  that  the  party  seeking  to  avoid  its 
effect  has  exercised  dihgence  in  piu'suit  of  such  knowledge,  or  that 
some  other  fact  was  presented  to  lais  notice  that  removed  the  impressions 
made  by  the  fact  of  possession.  If  the  evidence  of  notice,  and  absence 
of  notice,  goes  no  farther  than  proof  of  the  prior  purchaser's  open,  no- 
torious and  exclusive  possession  under  a  claim  of  title,  on  the  one  hand, 
and  the  simple  denial  of  the  subsequent  purchaser  that  he  had  any  no- 
tice or  knowledge  of  such  possession,  or  of  the  right  by  wliicli  the  pos- 
sessor claimed  to  occupy  the  premises,  it  must  be  taken  as  conclusively 
established  that  the  subsequent  purchase  was  made  with  notice  of  the 
prior  vendee's  right.  "Whether  the  question  is  regarded  as  one  of  actual 
or  constructive  notice,  it  must  be  regarded  as  a  question  of  law,  except 
so  far  as  the  credibility  of  witnesses  is  concerned.  If  the  jury  believe 
from  the  evidence  that  the  possession  ■was  of  the  character  indicated,  it 
is  of  no  consequence  whether  the  purchaser  knew  it  or  not.  K  the  pur- 
chaser is  conclusively  presumed  to  know  who  occupies  the  premises,  in 
the  absence  of  proof  of  inquiry,  he  will  be  conclusively  presumed  to 
know  all  the  facts  he  might  have  learned  by  inquiry  of  the  party  in 
possession.  This  comes  very  near  meeting  aU  the  requirements  of  con- 
structive notice. 


30     -.  THE    DIFFERENT    KINDS    OF   NOTICE, 

dcnce.'  The  distinction  here  contended  for  is  well  set  forth 
by  a  learned  text-writer  in  the  following  language:  "It 
will  have  been  perceived  that  the  term  constructive  notice 
is  here  used  in  a  somewhat  indefinite  sense.  The  same  is 
true  in  regard  to  most  text-writers  and  judges.  This  form 
of  expression  is  applied,  indiscriminately,  to  such  notice  as 
is  not  susceptible  of  being  explained  or  rebutted,  and  to 
that  which  may  be.  It  seems  more  appropriate  to  the 
former  kind  of  notices.  It  will  then  include  notice  by  the 
registry,  and  notice  by  Us  pendens.  But  such  notice  as  de- 
pends upon  possession,  upon  knowledge  of  an  agent,  upon 
facts  to  put  one  upon  inquiry,  and  some  other  similar  mat- 
ters, although  often  called  constructive  notice,  is  rather  im- 
plied notice  or  presumptive  notice,  subject  to  be  rebutted  or 
explained.  Constructive  notice  is  thus  a  conclusive  pre- 
sumption or  a  presumption  of  law,  while  implied  notice  is  a 
presumption  of  fact.  If  this  distinction  were  carefully  pre- 
served by  writers  upon  this  subject,  it  would  enable  us  to 
escape  a  good  deal  of  confusion  in  regard  to  the  subject  of 
notice."  ^ 

§41.  Different  Kinds  of  Constrnctive  Notice. —  The 
following  are  conspicuous  examples  of  constructive  notice 
as  it  atfects  subsequent  purchasers  and  incumbrancers  of  real 
estate:  1.  Notice  by  registration  of  instruments  affecting 
the  title.  2.  Kotice  from  title  papers  through  which  the 
title  of  the  grantor  is  traced.  3.  Lis  pendens.  To  which 
may  be  added,  possession  by  the  adverse  claimant  under 
claim  of  ownership.  All  of  which,  however,  are  separately 
treated  in  the  succeeding  chapters.^  Publication  is  also 
a  common  substitute  for  notice,  and,  when  served  in  this 
manner,  is  generally  known  as  constructive  notice.*     This, 

1  Mayor,  etc.,  v.  Williams,  6  Md.,  235;  Trefts  v.  King,  18  Perm.  St., 
157. 

-  Story's  Eq.  Jur. ,  §  410a.  For  examples  see  and  examine  the  cases 
cited  in  Jones  v.  Smith,  1  Hare,  43,  55,  56. 

3  Seepos^,  chs.  Ill,  IV,  V,  VI. 

*Seeposf,  ch.  XI. 


CO^^STRUCTIVE    NOTICE.  31 

like  registration,  is  purely  of  statutory  creation,  and  is  con- 
sequently subject  to  strict  construction. 

§  42.  Inference  of  Law. —  The  notice  which  arises  from 
legal  inference  drawn  from  facts  and  circumstances  suffi- 
cient to  put  the  party  upon  inquiry  is  only  effectual  to 
charge  a  purchaser  when  the  circumstances  are  of  such  a 
character  that  to  fail  in  obtaining  the  knowledge  would  be 
gross  or  culpable  negligence.^  And  this,  we  have  seen,  is 
only  distinguished  from  that  kind  of  actual  notice  arising 
from  inference  of  fact  by  the  most  shadowy  line.-  Judge 
Gibson,  in  Weidler  v.  Farmers'  Bank  of  Lancaster,^  says 
that  "  constructive  notice  is  not  lyrima  facie  evidence  of 
actual  knowledge  of  the  fact ;  the  presumption  of  notice, 
Avhen  it  arises  at  all,  being  conclusive  even  against  the  truth 
of  the  fact,  and  therefore  constructive  notice  is  always  in- 
sufficient to  fix  on  a  party  actual  knowledge  as  the  ground- 
work of  express  fraud.  *  *  *  There  might  be  a  case  of 
so  gross  a  nature  as  to  raise  a  presumption  from  the  fact 
itself,  that  the  judgment  creditor  knew  the  debtor  to  be 
without  color  of  title." 

§  4:2a.  Same  —  Distinction  Between^  and  Inference  of 
Eact.^ — Although  the  distinction  between  the  legal  pre- 
sumption of  notice,  and  facts  from  which  notice  may  be 
inferred,  is  insisted  upon  by  the  learned  judge  whose  lan- 
guage is  quoted  in  the  next  preceding  section,  it  is  with 
more  peremptoriness  than  clearness.  There  is  nothing  in- 
consistent in  drawing  a  legal  inference,  and  an  inference 
of  fact,  from  the  same  circumstances.  There  are  cases 
of  conflicting  rights  to  property  which  cannot  be  adjudi- 
cated upon  the  basis  of  constructive  notice,  for  the  reason 
that,  under  the  statute,  or  the  governing  rule  of  common 
law,  the  purchaser  can  only  be  affected  by  actual  notice  of 
the  adverse  claim. ^    ISTevertheless,  there  is  not  necessarily  a 

1  Ware  v.  Lord  Egmont,  4  De  G.,  M,  &  G.,  460. 

"^Ante,  %  40. 

3  11S.  &R.,  134. 

^Ante,%Z^a. 


6'J  THE   DIFFEEENT   KINDS   OF   NOTICE. 

failure  of  evidence  of  notice  of  the  requisite  actuality, 
merely  for  the  reason  that  the  same  facts  might  be  adduced 
in  supi)ort  of  the  theory  of  constructive  notice.  Thus, 
where  it  is  held  that  a  purchaser  has  constructive  notice  of 
every  fact  disclosed  by  the  muniments  which  constitute  the 
claim  of  title  of  the  subject  of  purchase,  the  presumption 
is  conclusive,^  and  at  the  same  time  is  regarded  as  the  legal 
equivalent  of  actual  notice,  whether  the  adverse  claim  be- 
comes actually  known  to  the  purchaser  or  not.-  Actual 
possession  under  a  claim  of  title  is  also  a  circumstance  that 
is  equally  conclusive.^  The  only  distinction  to  be  made 
where  these  circumstances  are  appealed  to  as  evidence  of 
actual  notice,  and  when  they  are  relied  on  as  construct- 
ive notice,  is  that,  in  the  latter  event,  the  facts  from  which 
the  inference  is  drawn  are  all  admitted  without  qualifica- 
tion, or  conclusively  proved,  and  in  the  former  they  are  dis- 
puted, or  qualified  by  other  facts.  When  left  to  the  jury, 
it  must  be  under  instructions  that  give  full  weig4it  to  them 
as  evidential  facts,  not  to  be  overcome  by  a  mere  denial  of 
knowledge.  Notice  by  registration,  and  by  lis  pendens,* 
differ  from  possession,  and  recitals  in  the  chain  of  title,  in 
something  more  than  the  number  of  facts  upon  which  they 
depend.  If  an  instrument  is  properly  registered,  it  will  be 
constructive  notice,  and  if  the  party  to  be  charged  has  seen 
the  record,  actual  notice  of  its  contents.  The  pendency 
of  the  action  is  constructive  notice,  but  requires  something 
more  than  the  service  of  original  process  upon  the  vendor 
to  make  it  actual  notice  to  the  vendee.  But  either  regis- 
tration or  lis  pendens  is  conclusive  upon  the  party,  with- 
out any  regard  to  the  probabilities,  or  even  the  j>ossihilit(/, 
of  his  having  gained  a  knowledge  of  the  prior  right.  The 
same  is  true  of  notice  by  publication  where  that  is  author- 
ized by  statute.-^    When  notice  depends  upon  an  inference 

1  Post,  §  310  et  seq. 

2  Posf,  §308. 

3  Supra,  §  40,  note. 
*Post,  isBI  etseq. 
^Post,  §449  et  seq. 


CONSTRUCTIVE    NOTICE.  33 

of  fact,  it  is  where  the  party  to  be  charged  might  liave 
gained  knowledge  b}^  tlie  exercise  of  due  diligence.  Wlu  n 
it  depends  upon  an  inference  of  law,  he  will  be  charged, 
though  actual  knowledge  was  utterly  beyond  his  reach. 
The  inference  of  fact  may  be  overcome,  or  qualified  by 
other  facts.     The  inference  of  law  is  final. 

§  4:3.  Contents  of  Writing  Known  to  Party  Executing 
Same. —  Where  the  notice  with  which  a  party  is  sought 
to  be  affected  is  traced  thrx^ugh  an  instrument  executed 
by  himself,  it  matters  not  wliether  such  instrument  con- 
stitutes a  necessary  link  in  his  chain  of  title,  he  will  be 
conclusively  presumed  to  have  full  knowledge  of  its  coii- 
tents,  except  where  his  signature  has  been  obtained  by 
fraud  or  deceit.^ 

§  44.  Possession  as  Constructive  Notice. —  The  same 
rules  govern  where  the  purchaser  is  charged  with  con- 
structive notice  by  adverse  possession,  as  where  sucli  posses- 
sion is  regarded  merely  as  evidence  from  which  the  jury 
are  at  liberty  to  infer  actual  notice.  The  possession  must 
be  clear,  open,  notorious  and  unequivocal,  at  the  time  of 
the  purchase.^ 

§45.  Purchaser  Pendente  Lite. —  Independent  of  the 
doctrine  by  Avhich  purchasers  j!?^?i^g;i?fe  lite  are  affected 
with  constructive  notice  of  the  suit,  so  as  to  bind  the  prop- 
erty in  their  hands  by  the  judgment,  it  has  been  held  that 
the  clerk  of  a  court  in  which  vv^as  pending  a  suit  for  specific 

1  Howard  Ins.  Co.  v.  Halsey,  4  Sandf.,  565;  S.  C,  8  N.  Y.,  271. 

2Meehan  v.  WiUiams,  48  Pa.  St.,  238;  Hughes  v.  U.  S.,  4  Wall.,  232; 
Landes  v.  Brant,  10  How. ,  348 ;  Smith  v.  Shane,  1  McLean,  22 ;  Lea  v. 
Polk  Co.,  etc.  Co.,  21  How,,  499;  Buckingham  v.  Smith,  10  Oliio,  288: 
KnoxtJ.  Thompson,  1  Litt.,  350;  Hanly  v.  Morse,  32  Me.,  287;  Griswokl 
V,  Smith,  10  Vt.,  452;  Harris  v.  Carter,  3  Stew.,  233;  Johnston  i'.  Glancy, 
4  Blackf.,  94;  Moreland  v.  Lemaster,  4  Blackf.,  383;  Walker  v.  Gilbert, 
1  Freem.  Ch.,  75;  Diehl  v.  Page,  3  N.  J.  Eq.,  143;  Wilty  v.  Hightower, 
6  Sm.  &  M.,  345;  Jenkins  v.  Bodley,  1  Sm.  &  M.  Ch.,  338;  Brown  v. 
Andover,  1  Mon.,  193;  Fallen  v.  HoUidaysburg,  40  Pa.  St.,  206;  Holmes 
V.  Powell,  8  De  G.,  M.  &  G.,  580;  Hardy  v.  Summers,  10  G,  &  J.,  316; 
post,  §  273  et  seq. 
8 


31  THE    DIFFERENT    KINDS    OF   NOTICE, 

•performance  was  constructively  charged  with  notice  of  the 
nature  of  plaintiff's  demand.' 

§  4<J.  Recitals  in  Title  Papers. —  Perhaps  as  striking 
an  example  of  tlie  extent  of  this  doctrine  as  could  be  found 
is  the  case  of  Peto  v.  Hammond,-  where  a  vendor's  hen  was 
retained  in  <\m  deed  to  the  grantor  of  the  party  charged, 
whicli  deed  had  ahvays  remained  in  the  original  vendor's 
l)ossession,  and  the  grantee  of  the  party  against  whom  the 
debt  stood  that  was  secured  by  the  lien  had  never  had  an 
opportunity  to  inspect  the  instrument.  Nevertheless,  it  was 
held  that  he  had  constructive  notice  of  such  lien,  for  the 
reason  that  it  was  recited  in  a  deed  which  formed  a  neces- 
sary link  in  his  chain  of  title.'  But  where  such  recital  is 
relied  upon  as  constructive  notice,  it  must  be  in  an  instru- 
ment affecting  the  title  to  the  same  piece  of  property  to 
which  such  recital  refers.^ 

§  47.  Possession  of  Deeds. — Where  the  title  deeds  neces- 
sarily pass  with  the  title,  and  strict  reliance  is  not  placed 
upon  the  registry  of  instruments  affecting  land  titles,  no- 
tice that  the  title  deeds  of  an  estate  are  in  the  possession 
of  some  one  else  than  the  grantor  is  generally  held  to 
be  constructive  notice  of  whatever  claim  the  one  in  pos- 
session of  such  deed  had  against  the  property.^  And  when 
the  title  deeds  are  not  found  in  the  possession  of  the  vendor 
it  becomes  the  duty  of  the  vendee  to  make  dihgent  in- 
quiry therefor.  He  cannot  suffer  himself  to  be  put  off 
Avith  frivolous  excuses  for  tlieir  absence,  and  purchase  with 
security."    But  tliis  must  be  understood  to  depend  upon 

1  Dickerson  v.  Campbell,  32  Mo.,  544. 

2  30  Beav.,  495;-  S.  C,  8  Jur.,  N.  S.,  550. 

3  Ferrai-s  v.  Cherry,  2  Vern.,  384;  Att'y  General  v.  Flint,  4  Hare,  147; 
Peto  V.  Hammond,  30  Beav.,  495:  Walter  v.  Maunde,  1  J.  &  W.,  181; 
Smith  V.  Capron,  7  Hai-e,  191 ;  Lewis  v.  Bond,  18  Beav.,  85;  Spunner  v. 
AValsh,  10  Ii-.  Eq.,  386. 

*  Boggs  V.  Varner,  6  W.  &  S.,  469. 
5  Hiein  v.  IMill,  13  Ves.,  114. 

^Dryden  v.  Frost,  3  M.  &  C,  670;  Jones  v.  Williams,  24  Beav.,  47; 
Tybee V.Webb,  6  Beav.,  552;  Worthington  v.  Morgan,  16  Sim.,  547;  Allen 


CONSTErCTIVE   NOTICE.  60 

who  has  the  actual  custody  of  such  deeds ;  as  where  thej 
are,  according  to  regular  usage,  in  the  hands  of  the  vendor's 
solicitor,  they  will  be  regarded  as  in  the  possession  of 
the  vendor  himself,  and  hence  the  solicitor's  possession  will 
not  impart  notice  of  his  claims  on  the  property.^  The  in- 
ference to  be  drawn  from  the  vendor's  want  of  possession 
of  the  title  deeds,  being  one  of  law,  will  be  confined  in  its 
operation  to  proper  boundaries  and  will  not  be  unduly  ex- 
tended by  implication.^ 

r.  Knight,  5  Hare,  272;  Colyer  v.  Fincli,  5  H.  L.,  905;  Hewitt  v.  Loose- 
more,  9  Haxe,  449;  Hopgood  v.  Ernest,  3  De  G.,  J.  &  S.,  116;  Peto  v. 
Hammond,  30  Beav.,  495;  Atterbuiy  v.  Wallis,  8  De  G.,  M.  &  G.,  454. 

1  Bozon  V.  Williams,  3  Younge  &  J.,  150, 

-'Griffith  V.  Griffith,  1  Hoff.  Ch.,  153. 


CHAPTER  II. 

NOTICE  TO  PUECHASERS  OF  DIFFERENT  KINDS  OF  PROPERTi'. 

§  48.  Division  of  Subject. 

49.  I*urchasers  of  Real  Property. 

50.  Purchaser  3Iala  Fide. 

51.  Notice  of  Marriage  Settlement. 

52.  Parol  Contract  to  Convey. 

53.  Wlien  Vendee  Requii-ed  to  Perform  in  Lieu  of  Vendor. 

54.  Notice  of  Adopted  Son's  Equity. 

55.  Prior  and  Subsequent  Contracts  to  Convey. 

56.  Possession  of  Title  Deeds. 

57.  Purchaser  with  Klnowledge  of  Trust. 

58.  Mortgagee  with  Knowledge  of  Trust. 

59.  Notice  to  Tiiistee. 

60.  Notice  Prior  to  Payment. 

61.  Purchaser  without,  from  Purchaser  -tvith,  Notice. 

62.  Pui'chaser  with,  from  Purchaser  without,  Notice. 

63.  Re-purchase  by  Original  Mala  Fide  Purchaser. 

64.  Unregistered  Conveyances. 

65.  How  Purchasers  May  be  Notified. 
65a.  Due  Inquiry. 

66.  Different  Kinds  of  Notice. 

67.  Purchasers  of  Chattels. 

68.  Innocent  Pledgees. 

69.  Mere  Possession  Not  Conclusive  Evidence  of  Title, 

70.  Secret  Instructions  to  Broker. 

71.  Secret  Lien. 

72.  Conditional  Sales. 

73.  Pledge. 

74.  Condition  May  be  by  Parol. 

75.  Property  Reclaimed  in  an  Altered  State. 

76.  Caveat  Emptor. 

77.  Chattel  Mortgages. 

78.  Possession  of  Chattels. 

79.  Choses  in  Action. 

80.  Negotiable  Instruments. 

81.  Lost  Bill. 

82.  Holder  Affected  Only  When  Grossly  Negligent. 

83.  Bad  Faith  Requisite  to  Defeat  Holder's  Rights. 

84.  Purchaser  without  Notice  Protected. 


DIFFEKEI^T   KINDS   OF   PEOPEKTT.  61 

85.  SaiflG  —  Knowledge  a  Question  of  Fact. 

86.  Facts  Which  Excite  Inquiry  Held  Inadmissible. 

87.  Circumstances  A\'liich  Put  Purchaser  on  His  Guard. 

88.  Bad  Faith  an  Inference  of  Fact. 

89.  Stolen  Securities  —  Avoidance  of  Knowledge. 

90.  Inquiry  Excited  by  Inspection  of  Paper. 

91.  Wlien  General  Notice  Sufficient. 
93.  Suspicious  Ch'cumstances. 

92a.  The  Time  When  Notice  Must  be  Acquired  to  Affect  Purchasers. 

93.  Payment  Before  and  After  Notice. 

94.  Patent  Defects  Affecting  Purchaser. 

94a.  Notice  of  Want  or  Failure  of  Consideration. 
946.  Notice  of  Diversion  of  Accommodation  Paper. 

§  48.  Division  of  Subject. —  It  is  a  well-recognized  rule 
of  equity  jurisprudence  that  a  purchaser,  with  notice  of 
a  right  in  another,  is  liable  in  the  same  manner,  and  to 
the  same  extent,  to  the  person  in  whom  is  the  right  of 
which  he  had  notice,  as  was  the  one  from  whom  he  pur- 
chased.^ And  this  liability  attaches  in  favor  of  such  per- 
son whether  he  has  united  in  himself  both  the  legal  and 
equitable  titles,  or  is  merely  the  owner  of  an  equitable  in- 
terest, Avith  the  legal  title  in  the  vendor.-  It  applies  to  all 
classes  of  property,  whethet  it  be  real,  personal  or  mixed, — 
in  possession  or  in  action.  It  is  the  purpose,  in  this  place, 
to  show  when  and  how  it  applies  to  these  different  kinds  of 
property,  which,  for  convenience,  will  be  considered  in  the 
following  order :  1.  Real  property.  2.  Chattels  in  posses- 
sion. 3.  Things  in  action, —  with  special  reference  to  nego- 
tiable instruments. 

§  49.  Purchasers  of  Real  Property. —  Except  where 
the  statute  otherwise  provides,  a  purchaser  of  real  property 

1  ColdweU  V.  Carrington,  9  Pet.,  86;  Moreland  v.  Le  Master,  4  Blackf., 
383;  Edwards  v.  Mon-is,  2  A.  K.  Marsh.,  65;  Langdon  v.  Woodfield,  3  B. 
Mon.,  105;  Allen  v.  Sanders,  2  Bibb,  94;  Yoder  v.  Swope,  3  Bibb,  204; 
Taylor  v.  Stibbert,  3  Ves.  Jr.,  437;  Dunbar  v.  Fredennick,  3  Ba.  &  Be., 
310;  Steedman  v.  Poole,  6  Hai-e,  193;  Smith  v.  Denton,  43  la.,  48;  Wat- 
son V.  Phelps,  40  la.,  483. 

2  Saunders  v.  Dehew,  3  Vem.,  271 ;  Allen  v.  Knight,  5  Ha.,  373;  Carter 
V.  Carter,  2  K.  &  J.,  617;  Cory  v.  Eyre,  1  De  G.,  J.  &  S,,  149. 


38  NOTICE   TO   PURCnASEKS. 

will  be  affected  by  notice,  either  actual  or  constructive,  of 
an  interest  or  title  adverse  to  that  of  his  grantor.^  But  a 
purchaser's  right  of  action  for  breach  of  covenants,  "  grant, 
bargain  and  sell,"  is  not  affected  by  notice,  actual  or  con- 
structive, of  an  incumbrance  existing  at  the  date  of  the 
pui'chase.-  Notice  which  is  constructively  given  by  the 
registration  of  instruments  affecting  the  title  is  perhaps 
the  most  general ;  but,  as  this  portion  of  the  subject  is  more 
fully  treated  in  the  next  succeeding  chapter,  it  will  not  re- 
ceive further  attention  here.* 

§  50.  Purchaser  Mala  Fide.— The  general  ground  upon 
which  courts  of  equity  interfere  for  the  protection  of  the 
owner  of  an  equitable  interest  in  real  estate,  as  against 
the  subsequent  purchaser  with  notice,  is  that  it  is  in  bad 
faith  for  one  to  attempt  the  circumvention  of  the  true 
owner  of  the  property,  by  endeavoring  to  anticipate  him 
in  gaining  the  advantage  to  be  derived  from  an  acquisition 
of  the  legal  title.*  Lord  Hardwicke,  in  a  leading  case  upon 
this  subject,  which  has  been  so  frequently  cited  as  to  be- 
come familiar  to  the  profession,  declares  the  substance  of 
the  rule  in  saying  that  "  the  taking  of  a  legal  estate,  after 
notice  of  a  prior  right,  makes  a  person  a  mala  fide  pur- 
chaser." ^  And  this  principle  is  applied  to  that  case  by  the 
learned  chancellor,  notwithstanding  the  fact  that  the  pur- 
chase declared  to  be  fraudulent  was  for  a  valuable  consid- 
eration, and  the  notice  by  which  the  purchaser  was  affected 
was  given  to  an  agent,  and  there  was  no  evidence  that  it 
had  been  communicated  to  the  principal.® 

iQerson  v.  Pool,  31  Ark.,  85;  Haskell  v.  State,  id.,  91;  Colman  v. 
Watson,  54  Ind.,  65;  Lamout  v.  Cheshire,  65  N.  Y.,  30. 

2Clore  V.  Graham,  64  Mo.,  249. 

3  See  post,  ch.  III. 

••Kennedy  v.  Daly,  1  Sch.  &  Lef.,  355;  Coble  v.  Nonemaker,  78  Penn. 
St.,  501;  Kepler  v.  Davis,  80  id.,  153;  Scott  v.  Dunbar,  1  Moll.,  442; 
Mackroth  v.  Symmons,  15  Ves.,  350;  Eice  v.  Rice,  2  Drew,  73;  Hiern  v. 
MiU,  13  Ves.,  114;  Coles  v.  Sims,  5  De  G.,  M.  &  G.,  1. 

SLe  Neve  v.  Le  Neve,  3  Atk.,  646;  S.  C,  1  Ves.  Sr.,  64. 

6 Seech.  IX. 


I  DIFFERENT   KINDS   OF   PKOPERTT.  39 

§  51.  Notice  of  Marriage  Settlement. —  Upon  this  prin- 
ciple, where  the  defendant  purchased  an  estate  with  notice 
of  the  fact  that  it  had  previously  been  entailed  to  the 
plaintiff  in  a  marriage  settlement  by  his  father,  who  was 
defendant's  grantor,  it  was  held  that  such  purchaser  took 
the  estate  charged  with  the  trust,  which  the  court  would 
compel  him  to  execute,  by  accounting  for  the  considera- 
tion received  upon  transferring  the  property  to  innocent 
purchasers.^ 

§52.  Parol  Contract  to  Convey.— So  a  purchaser  with 
notice  of  a  parol  contract,  executed  on  the  part  of  one  of 
the  parties,  between  the  owner  of  the  fee  under  whom 
he  claimed,  and  a  tenant  per  autre  me,  to  change  the  cestui 
que  vie  by  inserting  the  name  of  tenant's  wife  instead  of  an 
older  Ufe,  was  held  by  decree  to  specific  performance  of  the 
contract.'^ 

§  53.  When  Vtnilee  Required  to  Perform  in  Lien  of 
Vendor. —  There  are  also  numerous  cases,  where  the  owner 
of  the  equity  has  gone  into  possession  of  the  real  estate 
under  a  parol  contract  of  purchase,  which  only  becomes 
the  subject  of  equitable  enforcement  by  reason  of  the 
fact  that  there  is  a  part  performance  by  the  covenantee 
which  takes  it  out  of  the  operation  of  the  statute  of  frauds. 
In  these  cases,  the  purchasers  who  took  with  notice  of  the 
facts  were  decreed  to  perform  precisely  as  though  they 
were  the  original  contracting  parties.' 

§  54.  Notice  of  Adopted  Son's  Equity. —  And  even  where 
the  claimant's  equity  is  not  fortified  by  possession  and  im- 
provement, there  are  cases  of  a  pecuhar  character  where 
the  courts  have  granted  relief  against  the  purchaser  with 
notice.  As  where  an  agreement  was  entered  into  with 
the  father  of  an  infant  son,  by  an  uncle,  to  adopt  the 
nephew  as  his  own  child,  with  provision  that  his  property 
should  descend  to  such  adopted  son  on  the  death  of  the 

1  Ferrars  v.  Cherry,  2  Vern. ,  383. 

2Crofton  V.  Ormsby,  2  Sch,  &  Lef.,  583;  Bryant  v.  Booze,  55  Ga.,  438. 

3  Daniels  v.  Davison,  16  Ves.,  249;  Blatcliley  v.  Osborn,  33  Conn.,  226. 


40  KOTICE   TO   PDKCHASEKS. 

uncle  and  wife.  Pursuant  to  this  agreement  the  child  was 
taken  into  the  uncle's  family,  and  lived  with  him  until  he 
reached  the  age  of  twenty-five  years.  At  the  age  of  sixty- 
live  the  uncle,  in  consideration  of  the  support  of  himself 
and  wife  for  the  remainder  of  their  lives,  conveyed  a  con- 
siderable portion  of  his  property  to  his  wife's  sister.  The 
grantee,  taking  the  deed  with  notice  of  the  nephew's  equity, 
was  held  not  to  be  a  lona  fide  purchaser,  and  the  nephew 
was  entitled  to  relief.^ 

§  55.  Prior  and  Subseiiuent  Contracts  to  Convey. — 
As  between  antecedent  covenantees  and  subsequent  cov- 
enantees with  notice,  the  first  contract  will  be  enforced. 
The  prior  equity  is  entitled  to  the  same  protection  against 
subsequent  purchasers  in  bad  faith,  as  though  the  contest 
lay  between  rival  claimants  to  the  legal  title.  So,  where 
one  contracted  with  two  different  parties  to  sell  the  same 
estate,  the  one  first  in  time  would  be  entitled  to  specific 
performance,  and  the  subsequent  covenantee,  having  ob- 
tained the  legal  title  after  notice  of  the  prior  equity,  was 
decreed  to  convey  to  the  first  covenantee.- 

§  56.  Possession  of  Title  Deeds. —  It  has  been  held  in 
England,  where  the  possession  of  the  title  deeds  usually 
accompanies  the  title,  that  notice  that  such  deeds  were  in. 
the  possession  of  another  than  the  grantor  was  sufficient 
notice  of  an  equitable  claim  by  the  holder  of  the  deeds,  to 
bind  the  propert}'  in  the  hands  of  the  purchaser.  Especially 
is  this  so  held  where,  with  notice  of  such  possession,  there  is 
an  entire  absence  of  inquuy  with  regard  to  the  causes  for 
the  absence  of  the  title  deeds  from  the  possession  of  the 
grantor.^    But  when  it  appears  that  the  purchaser  has  been 

1  Vanduyue  v.  Vreeland,  13  N.  J.  Eq.,  142. 

■-Potter  V.  Sanders,  6  Hare,  1;  Taylor  v.  Stibbert,  2  Ves.  Jr.,  437; 
Bryant  v.  Booze,  55  Ga.,  438. 

"  RatcUffe  r.  Barnard,  L.  R. ,  6  Ch. ,  652 ;  Maxfield  v.  Burton,  L.  R. ,  17  Eq. , 
15;  Rolland  v.  Hart,  L.  R.,  6  Ch.,  678;  Broadbent  v.  Barlow,  3  De  G.,  F. 
&  J.,  570:  Perry  r.  HoU,  2  DeG.,  F.  &  J.,  38;  Espin  v.  Pemberton,  3  DeG. 
&  J.,  547:  Roberta  r.  Croft,  2  De  G.  &  J.,  1;  Atterbury  v.  AVallis, 
8  De  G.,  M.  &  G.,  454;  Penny  v.  Watts,  1  Macn.  &  G.,150;  Scott,  N.  R., 


DIFFEEENT   KINDS    OF   PROPERTY.       ,  41 

reasonably  diligent  in  the  prosecution  of  Ms  inquiries  as  to 
the  reasons  for  the  possession  of  the  title  deeds  by  one 
other  than  the  grantor,  and  a  reasonable  and  satisfactory 
excuse  has  been  made  for  the  circumstance,  this  will  re- 
move the  imputation  of  fraud  or  gross  negligence  upon 
which  the  presumption  of  notice  is  founded.' 

§57.  Purchaser  with  Knowledge  of  Trust. —  Where 
one  with  knowledge  of  a  trust,  or  notice  thereof  sufficient 
in  equity  to  affect  his  conscience,  purchases  from  the 
trustee,  the  property  so  purchased  will  still  be  subject  to 
the  trust,  and  he  will  be  held  to  be  a  trustee  for  the 
benefit  of  the  person  whose  rights  he  has  thus  sought  to 
defeat.- 

§58.  Mortgagee  with  Knowledge  of  Trust. —  Upon 
the  same  principle,  if  a  mortgagee,  with  notice  of  a  trust, 
should  obtain  a  conveyance  from  the  trustee  in  order  to 
protect  his  mortgage,  the  original  trust  would  attach  to  the 
title  in  his  hands,  and  he  would  not  be  permitted  to  reap 
any  advantage  by  such  conveyance.  By  the  purchase  he 
would  take  the  place  of  such  trustee,  with  reference  to  the 
title,  and  it  would  be  his  duty  to  execute  the  trust.  To 
allow  him  to  enjoy  an  advantage  from  such  a  transaction 
would  be  equivalent  to  permitting  him,  in  order  to  save 
himself,  to  commit  a  breach  of  trust.* 

§  59.  Notice  to  Trustee.— A  trustee  is  chargeable  with 
notice  of  the  equities  arising  from  the  trust,  and,  being 
a  member  of  a  firm,  notice  coming  to  him  in  this  manner 
will  affect  his  partners  in  the  same  manner  and  to  same 
extent  as  though  they  had  been  personally  notified,'*  for  the 

366;  Bradley  v.  Riches,  L.  R.,  9  Ch.  D.,  189;  Hiern  v.  mil,  13  Ves.,  114; 
Bii-ch  V.  EUames,  3  Anst.,  427;  Diyden  v.  Frost,  3  Myl.  &  Cr.,  670. 

1  Evans  v.  Biclmell,  6  Ves.  Jr.,  173;  Finch  v.  Shaw,  19  Beav.,  500; 
Dowle  V.  Saunders,  2  Hem.  &  Mill,  242. 

2Maundi-ell  v.  Maundrell,  10  Ves.,  260;  1  Story,  Eq.  Juris.,  §  395. 

3  Foster  v.  Blackstone,  1  Mylne  &  K.,  297 ;  Saunders  v.  Dehew,  3  Vern., 
271. 

4  Stevens  v.  Goodenough,  26  Vt.,  676. 


42  NOTICE   TO   PUKCHASERS. 

court  will  not  regard  the  character  in  which  the  notice  was 
received.' 

§  60.  Notice  Prior  to  Payment. — In  order  to  affect  pur- 
chasers it  is  not  always  necessary  that  the  notice  should 
be  actualh^  received  before  the  execution  and  delivery  of 
the  conve3^ance.  It  will  be  sufficient  if  given  before  the 
payment  of  the  purchase  mone}^,"'  and  when  there  has  been 
a  partial  payment  before  notice  received,  the  purchaser  will 
be  affected  jpro  tanto? 

§  61.  Purchaser  without,  from  Purchaser  with.  No- 
tice.—  AVhere  a  purchaser  acquires  the  title  with  notice, 
actual  or  constructive,  of  an  adverse  title  or  interest  in 
another,  although  as  between  himself  and  the  equitable 
owner  he  holds  the  title  charged  with  a  trust  in  favor  of  the 
latter,  he  may  by  a  conveyance  to  a  'bona  fide  purchaser  for 
value,  who  has  no  notice  of  the  trusts  with  which  the  prop- 
erty stands  charged,  effectually  cut  off  the  rights  of  the 
equitable  claimant;  for  the  purchaser  without  notice  from  a 
purchaser  who  took  ivith  notice  will  occupy  no  worse  posi- 
tion than  one  who  innocently  purchases  from  the  first  fraud- 
ulent grantor.* 

§  62.  Purchaser  with,  from  Purchaser  witliout,  No- 
tice.— So,  where  the  hona  fide  purchaser  conveys  to  an- 
other who  has  notice  of  the  equity  at  the  time  of  his  pur- 
chase, the  title  wiU  nevertheless  pass  discharged  of  the  trust 
to  which  it  was  subject  in  the  hands  of  the  first  grantor.'^ 
For  to  merely  protect  the  title  of  the  first  purchaser  with- 
out notice,  and  hold  the  property  subject  to  prior  equities, 
whenever  it  subsequently  came  to  the  hands  of  one  who  had 
notice  of  such  equity,  would  be  to  give  the  honest  purchaser 

'Barney  v.  Currier,  1  D.  Chap.,  315. 

2 Henry  v.  Raiman,  25  Penn.  St.,  354;  Ringgold  v.  Bryan,  3  Md.  Ch. 
Dec,  488. 

3  Hardin  v.  Harrington,  11  Bush  (Ky.),  367. 

^Hawley  v.  Cramer,  4  Cow.,  717;  Hardin  v.  Harrington,  11  Bush 
(Ky.),  367. 

5Lo\\i;lier  v.  Carlton,  2  Atk.,  242;  Cromwell  v.  County  of  Sac,  6  Cent. 
L.  J.,  209  (U.  S.),  1877. 


DIFFEEENT  KINDS   OF   PEOPEKTY.  43 

but  a  fruitless  advantage.  Such  a  rule  -would  deprive  the 
property  of  nearly  its  entire  market  value,  because  purchas- 
ers without  notice  would  become  more  difficult  to  find  as 
the  defect  of  title  became  more  generally  known. 

§  63.  Re-pur cliase  by  Original  Mala  Fide  Purchaser.— 
The  same  reasons  will  not  operate  in  favor  of  the  orig- 
inal purchaser  mala  Jlde,  when  he  re-acquires  the  title 
after  it  has  passed  through  the  hands  of  hona  fide  pm*- 
chasers.  By  holding  that  the  trust  would  re-attach  in  his 
hands,  but  a  single  possible  purchaser  is  disqualified,  which 
could  not  materially  affect  the  market  value  of  the  prop- 
erty. Besides,  to  extend  to  him  protection  as  an  innocent 
purchaser,  because  of  the  purgation  of  the  title  by  passing 
through  clean  hands,  would  be  to  facilitate  the  perpetration 
of  fraud.i 

§  64.  Uuregistered  Conveyances.  —  Notwithstanding 
the  statutory  provisions  by  which  the  registration  of  con- 
veyances is  required  in  order  to  give  them  vahdity  as 
against  subsequent  purchasers,  these  statutes  are  uniformly 
construed  not  to  favor  those  who  purchase  with  notice  of 
prior  unregistered  conveyances.^  To  hold  otherwise  would 
be  to  convert  the  registry  laws,  which  were  originaUy  in- 
tended as  a  protection  against  fraud,  into  the  most  formi- 
dable accessories  of  fraud.^  When  a  party  contemplating 
a  purchase  is  by  information,  or  other  facts  that  come 
to  his  knowledge,  put  upon  inquiry  as  to  the  vahdity 
of  the  title,  he  is  naturally  led  to  an  examination  of  the 
record  of  conveyances,  but  his  inquiries  should  not  end 
here.*  When  the  matter  of  which  he  has  received  notice 
is  an  ujirecorded  conveyance,  or  an  equitable  interest  that 
does  not  appear  of  record,  he  cannot  be  said  to  have  made 

1  Kennedy  V,  Daly,  1  Sch.  &  Lef.,  355;  Bovey  v.  Smith,  1  Ver.,  60; 
Schutt  V.  Large,  6  Barb.,  373;  Story,  Eq.  Jiir.,  §  410,  and  cases  cited. 

2  See  post,  §§  226,  231  et  seq.,  and  cases  cited. 

3  Story,  Eq.  Jur.,  §  395  et  seq. 

*Eeynolds  v.  Ruckman,  35  Mich.,  80;  Illinois  Central  R.  R.  v.  McCul- 
lough,  59IU.,  166. 


44:  NOTICE   TO   PUECHASERS. 

due  inquiry,  or  to  have  exercised  due  diligence,  by  merely 
consulting  the  county  records.' 

§  Go.  How  Purchasers  May  be  Notified. —  The  meth- 
ods by  which  notice  of  prior  equities  or  unregistered  con- 
veyances may  be  given,  so  as  to  affect  subsequent  pur- 
chasers, are  as  various  as  the  means  by  which  knowdedge 
or  information  of  any  fact  may  be  communicated,  or  by 
which  persons  may  be  led  to  beheve  in  the  existence  of 
such  facts.  They  include  those  facts  and  circumstances 
which  are  held  to  constitute  constructive  notice,  as  well  as 
those  amounting  in  the  estimation  of  the  court  or  jury  to 
actual  notice,  and  affect  subsequent  purchasers  and  incum- 
brancers alike.  The  most  obvious  and  direct  manner  in 
which  the  subsequent  party  may  be  warned  of  the  adverse 
interest  is  by  actual  knowledge  of  the  prior  conveyance  or 
equity ;  for  in  determining  questions  of  good  faith,  knowl- 
edge is  regarded  as  equivalent  to  notice  of  the  highest  de- 
gree, though  it  may  be  otherwise  when  notice  is  requisite 
to  perfect,  a  right,  or  put  the  person  to  whom  it  is  given  in 
default.'  Then  would  naturally  follow  in  their  order,  express 
notice,  or  direct  information,  oral  or  written,  from  some 
person  in  possession  of  actual  knowledge ; '  and  implied  no- 
tice, or  knowledge  of  collateral  circumstances  sufficient  to 
put  the  purchaser  or  incumbrancer  upon  inquiry  leading  to 
the  truth ;  *  and  lastly,  such  facts  as  would  raise  a  conclu- 
sive presumption  of  law,  tliat  the  party  charged  with  notice 
had  received  the  same.^ 

iMom-oe  v.  Eastman,  31  Mch.,  283;  Wilson  v.  Hunter,  30  Ind.,  466. 

2  Lead.  Cas.  in  Eq.,  vol.  II,  part  I,  148,  4th  Ani.  ed. 

3  See  ante,  §§  6,  7. 

4  Ante,  §§  11,  27.  "  Information,  from  whatever  source  derived,  which 
would  excite  apprehension  in  an  ordinary  mind,  and  prompt  a  person  of 
average  pnidence  to  make  inquiry,  would  be  sufficient."  Bryant  v. 
Booze,  55  Ga.,  438;  Swarthout  v.  Cmtis,  5  N.  Y.,  301;  Jackson  v.  Cald- 
weU,  ICow.,  622;  Bunting  v.  Ricks,  2  Dev.  &  Batt.,  130;  Gibbs  v.  Cobb, 
7  Rich.  Eq.,  54;  Parish  v.  Brooks,  4  Brewst.,  154;  Hinde  v,  Vattier,  1 
McLean,  110;  7  Pet.,  252;  Lawton  v.  Gordon,  37  Cal.,  202;  McLeod  v. 
First  Nat.  Bank,  42  Miss.,  99. 

5  Ante,  ch.  I,  part  II. 


DIFFERENT   KINDS   OF   PEOPERTY.  45 

§  65a.  Due  Inquiry. —  But  even  when  the  notice  is  of 
this  express  character,  it  may  fall  short  of  that  complete- 
ness that  brings  to  the  purchaser  full  knowledge  of  the 
adverse  interest.  It  may  only  serve  to  put  him  upon  in- 
quiry,  and  if  so,  the  hona  fides  of  his  purchase  is  to  be  deter- 
mined by  the  diligence  with  which  his  inquiries  were 
pursued  in  search  of  the  truth,^  The  party  may  be  required 
to  consult  the  alleged  prior  vendor  and  the  vendee,-  but 
cannot  rest  content  with  this  if  the  line  of  inquiry  sug- 
gested can  be  better  followed  up  with  third  persons.^  "When 
visible  structures  on  the  land  seem  to  be  in  the  possession 
of  others  than  the  vendor ;  ^  when  the  title  deeds  are  not 
in  the  possession  of  the  vendor,  Avhere  it  is  customary  or 
usual  to  find  the  muniments  of  title  in  the  possession  or 
under  the  control  of  OAvners,''  the  fact  that  a  stranger  is  in 

iPell  V.  McElroy,  36  Cal.,  268;  O'Roiirke  v.  O'Connor,  39  Cal.,  442; 
Witter  17.  Dudley,  42  Ala.,  616;  Dutton  i?.  Warschauer,  21  Cal.,  609;  Lit- 
tletons. Giddings,  47  Tex.,  109;  Briggs  v.  Taylor,  28  Vt.,  180;  Allen  v. 
Poole,  54  Miss.,  323;  Wood  v.  Ki-ebbs,  30  Gratt.,  708;  Cordova  v.  Hood, 
17  Wall.,  1;  Bennett  v.  Buckan,  61  N.  Y.,  222;  Bush  v.  Ware,  15  Pet., 
93;  Baker  v.  BUss,  39  N.  Y.,  70;  Kellogg  v.  Smith,  26  N.  Y.,  18;  Hehns 
V.  Chadbourne,  45  Wis.,  60;  Reed  v.  Gannon,  50  N.  Y.,  345;  Major  v. 
Bukley,  51  Mo.,  227;  Russell  v.  Sweezey,  22  Mich.,  235. 

2  Espin  V.  Pemberton,  3  De  G.  &  J. ,  547. 

3Hopgood  V.  Ernest,  3  De  G.,  J.  &  S.,  116;  Ratcliffe  v.  Barnard,  L. 
R.,  6  Ch.,  652;  Broadbent  v.  Barlow,  3  De  G.,  F.  &  J.,  570;  Maxfield  v. 
Burton,  L.  R.,  17  Eq.,  15;  Greenfield  ?;.  Edwards,  2  De  G.,  J.  &  S.,  582; 
Pitcher  v.  Rawlins,  L.  R.,  11  Eq.,  53;  Cory  v.  Eyie,  1  De  G.,  J.  &  S.,  149; 
Briggs  V.  Jones,  L.  R.,  10  Eq.,  92;  Hunt  v.  Ehnes,  2  De  G.,  F.  &  J., 
578;  MulUson's  Estate,  68  Pa.  St.,  212. 

*Hervey  v.  Smith,  22  Beav.,  299;  Morland  v.  Cook,  L.  R.,  6  Eq.,  252; 
Davies  v.  Sear,  L.  R.,  7  Eq.,  427;  Allen  v.  Seckham,  L.  R.,  11  Ch.  D., 
790;  Suffield  v.  Brown,  9  Jur.  (N.  S.),  999;  33  L.  J.  Ch.,  256;  Ewart  v. 
Cochrane,  4  Macq.,  117;  Clements  v.  WeUes,  L.  R.,  1  Eq.,  200;  Shackle- 
ton  V.  Sutchffe,  1  De  G.  &  Sm.,  609;  Pyer  v.  Carter,  1  H.  &  N.,  916; 
Dann  v.  Spm-rier,  7  Ves.,  231;  Wilson  v.  Hart,  L.  R.,  1  Ch.,  463;  Grant 
V.  Munt,  Coop.,  173;  Bowles  v.  Round,  5  Ves.,  508;  Dyer  v.  Hargrave, 
10  Ves.,  506;  Pope  v.  Garland,  4  Y.  &  C,  Ex.,  394. 

5  Jones  V.  Williams,  24  Beav.,  47;  Worthington  v.  Morgan,  16  Sim., 
547;  Allen  v.  Knight,  5  Hare,  272;  Jackson  v.  Rowe,  2  S,  &  S.,  472. 


46  NOTICE   TO   PURCHASERS. 

possession  of  tlie  premises/  or  other  circumstance  or  infor- 
mation coming  to  the  knowledge  of  the  purchaser  of  an 
interest,  right  or  chiim  adverse  to  that  of  his  vendor,^  are 
facts  which  put  tlie  purchaser  upon  inquiry.  And  a  party 
who  is  thus  put  upon  inquiry,  and  fails  to  prosecute  such  in- 
quiry in  a  proper  manner,  will  be  conclusive!}''  presumed  to 
have  obtained  all  the  information  he  might  liave  acquired 
by  diligence,  and  will  be  charged  with  absolute  notice  of 
any  adverse  interests  such  inquiry  would  have  disclosed.' 

§  6().  Different  Kinds  of  Notice. —  Among  these  differ- 
ent means  of  notice  are  adverse  possession,  which  is  con- 
sidered as  actual  notice,  and  in  some  instances  as  constructive 
notice  of  the  possessor's  title  or  interest.*  Xotice  from  title 
fopers  also  seems  to  have  been  considered  as  both  actual 
and  constructive.*  Lis  pendens,  according  to  the  accepted 
meaning  of  the  term,  is  clearh^  notice  only  by  the  aid  of 
legal  ])resumption.^  When  the  notice  comes  to  the  purchaser 
in  the  form  of  information  from  one  who  has  actual  knowl- 
edge of  the  prior  title,  it  seems  to  stand  with  some  courts 

1  AUen  V.  Anthony,  1  ]Meriv.,  282 ;  Holmes  v.  PoweU,  8  De  G.,  M.  &  G., 
572;  Hai'dy  v.  Reeves,  5  Ves.,  426;  Gordon  v.  Gordon,  3  Sw.,  400;  Nor- 
way V.  Rovre,  19  Ves.,  144;  White  v.  Wakefield,  7  Sim.,  401 ;  Johnson  v. 
Clarke,  18  Kans.,  157;  Miles  v.  Langley,  1  Riiss.  &  My.,  39;  Oxwith  v. 
Plummer,  2  Vern.,  636;  School  Dist.  v.  Taylor,  19  Kans.,  287;  Noyes 
r.  Hall,  97  U.  S.,  34;  Tankard  v.  Tankard,  79  N.  C,  654;  Crabtree  v. 
Breckenridge,  48  111.,  91;  Strickland  v.  Kirk,  51  Miss.,  795;  Moss  v.  At- 
kinson, 44  Cal.,  3;  Sears  v.  Munson,  23  Iowa,  380;  Phillips  v.  Costley, 
40  Ala.,  488;  Glidewell  v.  Spaugh,  26  Ind.,  819;  Bank  of  Orleans  v. 
Flagg,  3  Barb.  Ch.,  316;  Diehl  v.  Page,  3  N.  J.  Eq.,  143;  Baynard  v. 
Noi-ris,  5  GiU,  468;  MuUins  v.  Wunberly,  50  Tex.,  457. 

-Shepardson  v.  Stevens,  71  111.,  646;  Buttrick  v.  Holden,  13  Mete,  355; 
Stearns  v.  Gage,  79  N.  Y.,  102;  Buck  v.  Paine,  50  Miss.,  648. 

3Gouverneur  v.  Lynch,  2  Paige,  300;  Brice  v.  Brice,  5  Barb.,  533; 
Tutlev.  Jackson,  6  Wend.,  213;  McLanghhn  v.  Shepherd,  32  Me.,  143; 
Hardy  v.  Morse,  32  Me.,  287;  Burt  v.  Cassety,  12  Ala.,  739;  Scrogginsv. 
Dougal,  8  Ala.,  382;  Brush  v,  Halloway,  2  J.  J.  Marsh.,  180. 

^Post,  ch.  IV. 

sPos^,  ch.  V. 

6  Tost,  ch.  VI. 


DIFFERENT   KINDS   OF   PEOPEKTT.  47 

upon  nearly  the  same  footing  as  actual  knowledge  bi^ought 
home  to  the  person  to  be  charged.  Indeed  there  seems  no 
good  reason  why  one  should  not  purchase  at  his  peril,  in 
the  face  of  such  information,  regardless  of  whether  it  comes 
from  a  party  in  interest,  or  one  who  tenders  gratuitous  ad- 
vice, provided  he  be  one  who  Imoios  or  professes  to  know 
Avhereof  he  speaks.^ 

§  67.  Purchasers  of  Cliattels.— The  general  doctrine 
by  which  pm'chasers  of  real  estate  are  affected  with  notice 
of  prior  unregistered  instruments  affecting  the  title,  or  of 
prior  equities,  applies  in  substantially  the  same  manner  and 
to  the  same  extent  to  purchasers  of  chattels  in  the  posses- 
sion of  the  vendor  at  the  time  of  the  sale.  That  is,  when 
the  purchase  is  made  'bonafide  from  one  who  has  the  legal 
title,  or  who  has  been  clothed  by  the  owner  with  all  the  in- 
dicia of  ownersliip  or  authority  to  sell,  the  purchaser  would 
be  protected.-  But  if  the  purchase  be  made  with  notice  of 
title  or  interest  in  another,  or  with  a  knowledge  of  such  cir- 
cumstances as  would  suffice  to  put  liim  upon  inquiry  leading 
to  actual  knowledge  of  such  interest,  his  purchase  would  be 
fraudulent  as  against  the.  true  owner,  and  he  would  not  be 
permitted  to  profit  by  it.'' 

§  68.  Innocent  Pledgee. — The  case  of  Crocker  v.  Crocker* 
is  an  illustration  of  both  propositions  in  the  next  preced- 
ing section.  There  the  plaintiff  being  indebted  to  a  cor- 
poration on  account  of   unpaid  assessments  on  shares  of 

1  Lawton  v.  Gordon,  37  Cal.,  203. 

2Saltus  V.  Everett,  20  Wend.,  267;  Crocker  v.  Crocker,  31  N.  Y.,  507; 
Western  Trans.  Co.  v.  Marshall,  37  Barb.,  509;  Parker  v.  Middlebrook, 
24  Conn.,  207, 

3  Crocker  v.  Crocker,  31 N.  Y. ,  507 ;  Wooster  v.  Sherwood,  25  N.  Y. ,  278 ; 
Ploughboy,  1  Gall.,  41 ;  McAnelly  v.  Chapman,  18  Tex.,  198.  In  general, 
in  order  to  affect  subsequent  purchasers  of  chattels,  or  creditors  of  the 
seller,  with  notice  of  the  prior  sale,  there  must  be  an  open  and  unequiv- 
ocal change  of  possession  from  the  seller  to  the  prior  purchaser. 
Bishop  V.  O'Connell,  56 Mo.,  159;  Claflinv.  Eosenberg,  42  Mo.,  439;  Lesem 
V.  HeiTiford,  44  Mo.,  323. 

4  31N.  Y.,  507. 


48  NOTICK  TO   PUECnASEES. 

its  stock,  and  being  a  creditor  of  the  corporation  to  an 
amonnt  almost  equal  to  the  amount  of  his  unpaid  assess- 
ments, it  was  agreed  that  upon  a  sale  of  his  stock  for  what 
remained  unpaid  he  was  to  receive  credit  for  the  amount 
due  him,  and  then  pay  in  the  balance.  In  pursuance  of 
this  arrangement,  defendant,  who  was  plaintiff's  brother, 
at  the  instance  and  request  of  plaintiff,  attended  the  sale 
and  bid  in  the  stock,  but  was  only  required  to  pay,  the 
amount  remaining  after  the  deduction  of  the  amount  due 
plaintiff  from  the  corporation.  The  legal  title  was  vested 
in  the  defendant,  who  had  all  the  indicia  of  absolute  owner- 
ship ;  but  as  between  himself  and  brother  he  held  as  trustee 
for  the  latter.  It  was  also  held  that  he  had  no  title  or  in- 
terest which  he  could  convey  to  a  purchaser  with  notice  of 
the  trust,  so  as  to  divest  the  beneficial  interest  of  his  cestui 
que  trust;  but  where  one  who  had  neither  actual  nor  con- 
structive notice  of  such  interest  received  certain  shares  of 
such  stock  in  pledge  from  the  trustee,  parting  with  value 
therefor,  and  taking  the  same  in  the  honest  belief  that  they 
were  the  property  of  such  trustee,  the  innocent  party  who 
was  thus  misled  by  the  fraudulent  acts  of  the  trusted  agent 
of  the  plaintiff  was  entitled  to  protection  in  his  possession 
of  the  stock. 

§  69.  Mere  Possession  Not  Conclusive  Evidence  of 
Title. —  The  case  of  Wooster  -v.  Sherwood  ^  was  where  the 
subject  of  the  sale  was  a  quantity  of  barley  in  a  brew- 
ery. The  vendor  afterwards  sold  the  brewery  and  contents, 
giving  notice  to  the  purchaser  of  the  specific  quantity  of 
barley  to  which  plaintiff  was  entitled.  This  passed  no  title 
to  any  portion  of  plaintiff's  barley  to  the  purchaser  of  the 
brewery,  and  a  sale  and  delivery  of  the  same,  by  the  latter, 
to  an  innocent  purchaser  for  value,  was  held  equally  invalid 
to  divest  plaintiff's  title,  for  the  reason  that  the  vendor  had 
not  been  clothed  by  plaintiff  with  any  apparent  authority 
to  sell,  or  any  power  to  exercise  control  over  the  property. 

125N.  Y.,  278. 


DIFFERENT   KINDS   OF   PKOPEETT.  40 

§  70.  Secret  Instructions  to  Broker. —  It  has  been  else- 
where held  that  where  one  purchased  goods  and  chattels 
and  had  them  transferred  to  a  broker  whose  business  it  was 
to  sell  such  merchandise,  and  the  broker  was  authorized  by 
the  owner  to  assume  the  apparent  right  to  dispose  of  the 
property  in  the  ordinary  course  of  trade,  the  secret  instruc- 
tions to  the  broker  would  not  affect  the  rights  of  a  pur- 
chaser who  had  no  notice  of  them.^ 

§  71.  Secret  Lien. —  In  Western  Transportation  Com- 
pany V.  Marshall,^  the  sale  was  of  a  quantity  of  grain,  which 
the  court  held  had  been  duly  delivered  by  plaintiff  on  board 
defendant's  ship,  accompanied  by  such  written  indicia  as, 
together  with  the  possession  of  the  grain,  would  lead  others 
to  believe  that  the  purchaser  was  the  owner.  Under  these 
circumstances  it  was  held  that  one  who  purchased  without 
notice  of  the  non-payment  of  the  purchase  money,  which, 
according  to  the  contract,  was  to  be  paid  on  delivery,  and 
the  grain  having  been  in  the  possession  of  the  first  pur- 
chaser for  four  days,  was  a  hona  fide  purchaser  and  within 
the  protection  of  the  law.  But  the  learned  judge,  in  ren- 
dering the  opinion  in  this  case,  goes  to  the  extent  of  de- 
claring that  "where  the  owner  voluntarily  delivers  the 
possession  of  merchandise  to  a  vendor,  subsequent  'bona  fide 
purchasers  from  such  vendor,  and  those  incurring  liabilities 
and  making  advances  on  the  faith  of  such  possession,  or 
standing  in  the  relation  of  hona  fide  purchasers,  are  entitled 
to  protection  against  the  claims  of  the  former  owner, 
although  the  sale  he  conditional  and  the  purchase  price  not 
paid." 

§  72.  Conditional  Sales. —  While  it  may  be  true,  as  it 
seems  to  have  been  held  in  the  case  last  cited,  that  a  sale  may 
be  absolute,  although  the  terms  of  payment  are  not  complied 
with  by  the  purchaser;  and  that  the  subsequent  vendee, 
without  notice  of  such  non-compliance,  will  be  protected  as 
an  innocent  purchaser,  the  doctrine  has  been  established  by 

1  Pickering  v.  Busk,  15  East,  38, 

2  37  Barb.,  509. 

4 


50  NOTICE   TO   PURCHASEKS. 

a  long  line  of  decisions,  that  where  the  sale  is  conditional^ 
in  the  sense  that  the  property  in  the  chattels  is  not  to  pass 
until  the  performance  of  the  conditions,  the  mere  surrender- 
ing of  possession  to  the  conditional  vendee  will  not  amount 
to  such  apparent  authority  to  dispose  of  the  goods  as  will 
enable  him  to  give  to  a  purchaser  a  title  superior  to  that  by 
which  he  held.  In  other  words,  until  the  goods  are  paid 
for  (if  that  be  the  condition),  they  belong  to  the  original 
owner,  and  although  the  purchaser  from  the  conditional 
vendee  should  take  without  notice  of  the  absence  of  title 
in  his  vendor,  the  owner  may  reclaim  the  goods.^ 

§  73.  Pledge. —  So  where  property  has  been  deposited 
with  a  person  as  a  pledge  to  secure  the  payment  of  a  sum 
of  money  in  the  future,  or  to  answer  for  the  depositor's 
default  in  the  performance  of  some  other  act  of  ])ecuniary 
benefit  to  the  pledgee,  the  contract  between  the  parties  will 
govern  as  to  the  character  of  the  pledgee's  possession ;  and 
should  he  transfer  such  possession  to  another,  and  attempt 
at  the  same  time  to  transfer  the  title,  his  act,  being  in  con- 
travention of  the  terms  of  the  contract,  would  be  nugatory, 
so  far  as  it  affected  the  pledgor's  right  to  redeem,  although 
the  person  to  whom  the  transfer  was  made  had  no  notice  of 
the  owner's  claim  or  title.-  In  the  case  cited,  the  pledge  was 
of  certificates  of  shares  of  stock,  to  which  were  attached  a 
blank  power  of  attorney,  authorizing  the  attorney  to  sell  the 
stock.  ISTotwithstanding  that  the  pledgee,  in  violation  of 
the  terms  of  the  contract,  by  filling  out  the  power  of  attor- 
ney, clothed  himself  with  the  apparent  jus  disjponendi^  it 

1  Clark  V.  Wells,  45  Vt.,  4;  Hotchkiss  v.  Hunt,  49  Me.,  213;  Crocker  v. 
Gullifer,  44  Me.,  491 ;  Haa-t  v.  Carpenter,  24  Conn.,  427 ;  Forbes  v.  Marsh, 
15  Conn.,  384;  Morris  v.  Rexford,  18  N.  Y.,  552;  Strong  v.  Taylor,  2  Hill 
(N.  Y.),  326 ;  Riddle  v.  Coborn,  8  Gray,  241 ;  BaiTett  v.  Pi-itchai-d,  2  Pick., 
512;  Wlaitwell  v.  Vincent,  4  Pick.,  449;  Pi-ice  v.  Jones,  3  Head,  84; 
Fifield  V.  Ebner,  25  Mich.,  48;  Dunbar  v.  Rawles,  28  Ind.,  225;  Baker  v. 
Hall,  15  la.,  277;  Griffin  v.  Righ,  44  Mo.,  326;  Little  v.  Page,  id.,  412; 
West  J.  R.  R.  Co.  V.  Trenton  Car  Works  Co.,  32  N.  J.  L.,  515;  MorriU  v. 
Moulton,  40  Vt.,  242;  Johnson  v.  Powers,  id.,  611. 

-McNeU  V.  Tenth  Nat'l  Bank,  55  Barb.,  59. 


DIFFERENT   KINDS    OF   PEOPEETY.  51 

was  held  that  this  did  not  authorize  him  to  sell  without 
complying  with  the  legal  requirements  in  case  of  the  sale 
of  a  pledge,  such  as  notice  to,  and  demand  of,  the  pledgor ; 
and  a  sale  to  an  innocent  purchaser  in  fraud  of  the  rights  of 
the  pledgor  would  not  divest  the  title  of  the  latter.^ 

§  74.  Condition  May  be  by  Parol. —  The  case  of  Clark 
■V.  "Wells  2  was  where  a  coach  had  been  left  with  a  me- 
chanic for  repair,  and  he  supplied  new  wheels  to  the 
vehicle,  which  Avere  by  parol  agreement  to  remain  his  prop- 
erty until  paid  for.  Before  paying  for  them,  however,  the 
owner  sold  the  coach  to  an  innocent  purchaser,  who  resold 
it  to  another ;  and  although  neither  had  notice  of  the  me- 
chanic's claim  to  the  wheels,  it  was  held  that  in  the  ab- 
sence of  evidence  showing  laches  on  his  part,  he  might 
reclaim  them  from  the  last  purchaser. 

§  75.  Property  Keclaimed  in  an  Altered  State. —  An- 
other example  of  the  effect  given  to  conditional  sales, 
Avhere  uninformed  purchasers  or  creditors  would  be  least 
likely  to  suspect  the  property  and  the  possession  to  be  in 
different  persons,  is  the  case  of  Barret  v.  Pritchard.*  There 
the  claimant  had  sold  wool  to  a  manufactiu'er,  upon  condi- 
tion that  it  was  to  be  paid  for  in  six  months,  and  until  paid 
for,  whether  it  remained  in  its  original  condition,  was  man- 
ufactured, or  in  process  of  manufacture,  into  yarn  or  cloth, 
it  should  remain  the  property  of  the  vendor.  This  was 
held  to  be  a  vaUd  contract,  and  one  which  could  be  enforced 
by  the  conditional  vendor,  by  reclamation  of  the  property 
as  against  creditors  without  notice. 

§  76.  Caveat  Emptor. —  While  it  is  not  denied  that 
possession  of  personal  property  is  prima  facie  evidence  of 
ownership,  it  is  quite  evident  from  the  foregoing  authori- 
ties that,  except  where  the  statute  interposes  for  the  pro- 
tection of  innocent  purchasers,  such  property  may  be  held 

1  See,  also,  BaUard  v.  Burgett,  40  N.  Y.,  314. 

2  45  Vt,  4. 

3  2  Pick.,  513. 


52  NOnCE   TO   rUKCIIASEKS. 

subject  to  secret  claims,  and  the  title  will  be  transferred 
subject  to  the  doctrine  of  caveat  emptor} 

§  77.  Chattel  Mortgages. —  The  title  to  personal  chat- 
tels is  only  affected  by  the  registry  laws,  when  the  property 
is  mortgaged,  or  conveyed  in  trust  as  security  for  the  dis- 
charge of  an  obligation,  for  the  benefit  of  the  mortgagee  or 
beneficiary  mentioned  in  the  deed  of  trust.^  As  respects 
the  registry  of  chattel  mortgages,  and  the  effect  of  such 
registry  as  notice  to  subsequent  purchasers  and  incum- 
brancers, the  rules  are  substantially  similar  to  those  recog- 
nized where  conveyances  of  real  estate  are  in  question.  In 
some  of  the  states,  however,  there  is  a  difference  in  the 
effect  of  the  registiy  of  instruments  affecting  the  titles  to 
these  different  kinds  of  property,  in  this:  That  unregis- 
tered chattel  mortgages  are  absolutely  void,  even  as  against 
subsequent  purchasers  or  creditors  with  actual  notice 
thereof.  They  differ  from  conve3^ances  or  incumbrances  of 
real  estate,  for  the  reason  that  their  validity  depends  as 
much  upon  their  proper  acknowledgment  and  registration 
as  upon  their  execution  and  deliver}'-.'^ 

§  78.  Possession  of  Chattels. —  What  is  elsewhere  said 
concerning  the  doctrine  of  notice  of  prior  claims  to  real 
estate,  which  comes  from  knowledge  or  information  of  the 
possession  of  the  property  by  the  adverse  claimant,  will 
apply  with  still  greater  force,  so  far  as  it  favors  such  doc- 
trine, to  the  possession  of  personal  chattels. 

§  79.  Clioses  in  Action. —  Choses  in  action  which  in 
equity,  according  to  the  law  merchant,  or  under  the  favor- 
ing provisions  of  statute  law,  are  assignable,  occupy  a  posi- 

iPannlee  v.  Catherwood,  36  Mo.,  479. 

2  Mueller  v.  Engeln,  13  Bush  (Ky.),  441. 

3  But  chattel  mortgages  will  only  be  declared  void  as  against  subse- 
quent i)urchasers  for  value.  The  provision  of  the  statute  requiring  such 
instrumGnts  to  be  recorded,  in  order  to  give  them  prioi-ity  over  the 
claims  of  subsequent  purchasers,  is  not  intended  for  the  benefit  of  those 
who  have  paid  nothing.  Kohl  v.  Lynn,  34  Mich.,  360.  The  effect  of  re- 
cording a  chattel  mortgage,  as  notice  to  pm-chasers,  will  follow  the  chat- 
tels when  removed  to  another  state.    Hall  v.  Pillow,  31  Ark.,  32. 


DIFFEREISTT   KINDS   OF   PKOPEETY.  53 

tion  with  reference  to  tlie  question  of  notice  essentially 
different  from  that  occupied  by  any  other  species  of  prop- 
erty. "When  the  subject  of  the  transfer  is  not  negotiable, 
according  to  the  law  merchant,  the  equities  subsisting 
against  it  in  the  hands  of  the  assignor  follow  it  into  the 
hands  of  the  assignee,  whether  he  has  notice  of  such  equi- 
ties or  not.  Where  the  transfer  of  a  non-negotiable  secu- 
rity involves  nothing  further  than  a  mere  change  of  title, 
the  purchaser  is  at  once  subrogated  to  all  the  rights,  and 
assumes  all  the  liabilities,  attendant  upon  the  ownership  of 
the  instrument.^ 

§  80.  Negotiable  Instruments. —  But  respecting  nego- 
tiable instruments,  and  their  transfer,  the  purchaser  occu- 
pies a  more  advantageous  position  than  the  purchaser  of  any 
other  species  of  property.  It  is  true  that  even  he  will  be 
affected  by  notice  of  equities  which  would  have  defeated 
the  security  in  whole  or  in  part,  in  the  hands  of  the  orig- 
inal paj^ee ;  but  so  favorable  is  the  law  to  the  facile  transfer 
of  negotiable  paper,  that  it  Avill  not  suffer  its  assignability 
to  be  obstructed  by  a  merely  technical  notice  to  the  pur- 
chaser that  the  obligor,  as  between  himself  and  the  obligee, 
has  a  defense  to  the  demand.  The  notice  of  defenses  to 
negotiable  paper,  to  affect  purchasers,  must  therefore  be 
actual  and  not  merely  constructhe,  and  must  be  of  a  higher 
degree  than  circumstances  sufficient  to  put  a  man  of  ordi- 
nary prudence  on  inquiry .^ 

1  Sanborn  v.  Little,  3  N.  H.,  539. 

2 Swift  V.  Tyson,  16  Pet.,  1 ;  Goodman  v.  Simonds,  20  How.,  343 ;  Bank 
of  Pittsburgh  v.  Neal,  32  How.,  96;  Murray  v.  Lardner,  2  Wall.,  110; 
Magee  v.  Badger,  34  N.  Y.,  247;  Belmont  Branch  Bank  v.  Hodge,  35  N. 
Y.,  65;  Seybel  v.  Nat'l  Cur.  Bank,  54  N.  Y.,  288;  Phelan  v.  Moss,  67 
Penn.  St.,  59;  Lake  v.  Reed,  29  la.,  258;  Worcester  Co.  Bank  v.  Dor- 
chester Bank,  10  Cush.,  488;  Brush  v.  Scribner,  11  Conn.,  388;  Wool- 
folk  V.  Bank  of  America,  10  Bush,  504;  Horton  v.  Bayne,  52  Mo.,  531; 
Merrick  v.  Phillips,  58  Mo.,  436;  Hamilton  v.  Marks,  63  Mo.,  167;  Law- 
son  V.  Weston,  4  Esp.,  56;  Johnson  v.  Way,  4  Am.  Law,  758;  Morehead 
V.  Gilmore,  77  Penn.  St.,  118;  Peacock  v.  Rhodes,  2  Doug.,  611;  Crook 
V.  Jadis,  5  Barn.  &  Ad.,  909;  Backhouse  v.  Harrison,  5  Barn.  «&  Ad., 


54  NOTICE   TO   PURCHASERS. 

§81.  Lost  Bill. —  The  doctrine  laid  do-^ii  iii  the  pre- 
ceding section  was  substantially  announced  by  Lord  Ken- 
ton in  the  early  case  of  Lawson  v.  "Weston,^  where  the 
question  arose  upon  a  lost  bill,  which  had  been  discounted 
without  actual  notice  of  the  rights  of  the  original  payee. 
It  was  sought  to  charge  him.  with  notice  by  proof  that  the 
loss  was  advertised,  and  payment  stopped  by  notice  to  the 
drawee.  As  the  bill  came  to  the  possession  of  the  holder 
who  had  discounted  it,  without  fi'aud  on  his  part,  the  ad- 
vertisement was  held  not  sufficient  to  bind  hun.  The  ear- 
lier case  of  Miller  v.  Eace-  is  cited  in  support  of  the  same 
principle,  but  as  that  was  decided  with  reference  to  a  bank 
bill  which  circulated  as  cash,  it  could  have  no  application  in 
considering  the  question  of  notice  as  it  affects  commercial 
paper. 

§  82.  Holder  Affected  Only  When  Grossly  Negligent.— 
This  doctrine  was  shaken  for  a  time  in  England  by  a 
case  in  which  it  was  decided  that  where  one  discounted  a 

1098;  Goodman  v.  Harvey,  4  Ad.  &  El,,  870;  Uther  v.  Rich,  10  Ad.  & 
El.,  784;  Ai-bouin  v.  Anderson,  1  Ad.  &  El.  (N.  S.),  498;  Ti-ieber  v.  Com'l 
Bank  of  St.  Louis,  31  Ark.,  128;  Weit  v.  Thayer,  118  Mass.,  473.  An 
acceptor  of  a  bill,  accei^ted  in  blank,  has  been  held  chargeable  with  no- 
tice of  any  fraudulent  use  made  of  it.  Kerr  on  Fraud  &  Jlistake,  248 ; 
Hatch  V.  Searles,  24  L.  J.  Ch.,  22;  Sharp  v.  Arbuthnot,  13  Jur.,  219.  It 
is  not  every  negotiable  instiniment  that  is  protected  as  bills  of  exchange. 
The  mere  fact  that  they  are  negotiable,  m  the  sense  that  the  property  in 
them  passes  by  indorsement,  does  not  seem  to  requu-e  actual  notice,  or 
notice  so  express  that  pui'chasers  could  not  take  them  without  gross 
and  culpable  negligence,  to  render  them  subject  to  the  original  defenses 
against  them  in  the  hands  of  such  purchasers.  This  immunity  is  pecul- 
iar to  instruments  known  to  the  law  merchant  as  commercial  paper. 
It  is  held  not  to  apply  to  bills  of  lading,  which  are,  by  statute,  negotiable 
"in  the  same  manner  as  bills  of  exchange."  And  hence,  where  tha 
piirchaser  of  such  a  bill  had  reason  to  beheve  that  his  vendor  was  not 
the  owner  thereof,  or  that  it  was  held  to  seciu'e  an  outstanding  draft, 
he  was  not  regarded  as  a  bona  fide  purchaser,  nor  entitled  to  hold  the 
merchandise  covered  by  the  bill,  against  its  tnie  owner.  Shaw  v.  Rail- 
road Co.,  101  U.  S.,  557. 

i4Esp.,  56. 

21  Burr.,  453. 


DIFFEKENT   KINDS    OF    PEOPEKTY.  55 

bill  wliicli  had  been  advertised  as  lost,  in  the  ordinary  course 
of  his  business,  under  circumstances  which  ought  to  have 
excited  the  suspicions  of  a  prudent  man,  he  was  not  entitled 
to  recover  against  the  indorser.^  But  in  a  subsequent  case 
this  uncertain  and  vague  test  was  expressly  repudiated,  with 
the  concurrence  of  all  the  judges  of  the  court  of  king's 
bench,  and  it  was  held  incumbent  upon  the  drawer  of  an 
accommodation  bill  upon  which  suit  was  brought  by  the  in- 
dorsee, in  order  to  avail  himself  of  the  defense  that  the  bill 
was  fraudulently  put  in  circulation,  to  show  that  the  holder 
had  been  guilty. of  gross  neghgence.^  This  case  was  af- 
firmed at  the  same  term,^  where  the  case  of  Gill  v.  Cu- 
bitt,^  and  others  adhering  to  the  doctrine  there  announced, 
were  expressly  overruled. 

§  83.  Bad  Faith  Requisite  to  Defeat  Holder's  Rights. — 
In  a  still  later  case  before  the  same  court,  the  question 
of  gross  negligence  was  held  proper  for  submission  to  the 
jury  in  a  suit  between  the  indorser  for  value  of  a  bill  of 
exchange  and  a  prior  party  thereto;  but  it  was  given  as 
the  opinion  of  the  court  that  this  alone  would  not  be  a  suf- 
ficient answer  where  the  holder  had  given  value  for  the 
bill.  Bad  faith  on  the  part  of  the  purchaser  was  regarded 
as  an  essential  fact  to  be  established  by  the  defendant,  and 
though  gross  negligence  might  be  evidence  of  such  bad 
faith,  it  did  not  amount  to  the  same  thing.^  Subsequent 
Enghsh  decisions  have  reaffirmed  this  doctrine,  and  it  is  now 
regarded  as  the  settled  law  of  England.^ 

§  84.  Purchaser  Without  Notice  Protected. —  In  Swift 
V.  Tyson,''  the  question  of  notice  was  not  fairly  at  issue; 
but  it  was  there  laid  down  by  Mr.  Justice  Stoet,  as  a 
general  rule,  that  a  purchaser  of  negotiable  paper,  in  the 

iGill  V.  Cubitt,  3  Barn.  &  Cres.,  466, 
2 Crook  V.  Jadis,  5  Barn.  &  Ad.,  909. 
3 Backhouse  v.  Harrrison,  id.,  1098. 
*  Supra. 

5  Goodman  v.  Harvey,  4  Ad.  &  Ell.,  870.  •- 

6  Supra,  %  80. 
UBPet,  1. 


00  NOTICE   TO   PUKCHASERS. 

ordinary  course  of  business  and  for  a  valuable  considera- 
tion, without  notice  of  facts  which  would  impeach  its  vahd- 
ity  between  the  antecedent  parties,  if  he  took  it  under  an 
indorsement  made  before  the  same  became  due,  held  the 
title  unaffected  by  these  facts,  and  might  recover  thereon, 
although,  as  between  the  original  parties,  the  transaction 
was  without  legal  validity.  This  doctrine  was  there  de- 
clared by  the  learned  judge  to  be  so  long  and  so  well  estab- 
lished, and  so  essential  to  the  security  of  negotiable  paper, 
that  it  had  been  laid  up  among  the  fundamentals  of  the 
law,  and  no  longer  required  argument  or  the  citation  of 
authority  in  its  support.^ 

§  85.  Same  —  Knowledge  a  Question  of  Fact. —  Incit- 
ing the  above  case,  and  maldng  copious  quotations  from  the 
opinion  of  the  learned  judge,  Mr.  Justice  Cliffoki^,  in  Good- 
man V.  Simonds,-  interprets  the  word  7iotice,  as  there  em- 
ployed, to  be  the  same  as  knowledge^  and  deduces  therefrom 
the  rule  that  "Nothing  less  than  proof  of  knowledge  of 
such  facts  and  circumstances  can  meet  the  exigencies  of  such 
a  defense.  *  *  *  And  the  question  whether  the  party 
had  such  knowledge  or  not  is  a  question  of  fact  for  the 
jury.  *  *  *  And  the  proper  inquiry  is,  did  the  party 
seeking  to  enforce  the  payment  have  knowledge,  at  the  time 
of  the  transfer,  of  the  facts  and  circumstances  which  im- 
peach the  title,  as  between  the  antecedent  parties  to  the  in- 
strument?^ And  if  the  jury  find  that  he  did  not,  then  he  is 
entitled  to  recover,  unless  the  transaction  was  attended  by 
bad  faith,  even  though  the  instrument  had  been  lost  or 
stolen." ' 

1  SwaU  V.  Clarke,  51  Cal.,  227. 

2  20  How.,  343. 

3  20  How.,  365. 
^ 20  How.,  366. 

5  Knowledge  of  the  infirmities  of  a  bill  or  note  coming  to  one  of  two 
partners  in  a  jirivate  bank  will  be  imputed  to  the  partnership,  so  that  the 
bank  cannot  be  a  hona  fide  holder  of  such  paper.  Stockdale  v.  Keyes, 
79  Pa.  St.,  251. 


DIFFEKENT   KINDS    OF    PROPERTY.  57 

§  86.  Facts  Which  Excite  Inquiry  Held  Inatlmissible. — 

In  AVoolfolk  V.  Bank  of  America,^  Judge  Peyor,  in  render- 
ing the  opinion  of  the  court,  says :  "  In  a  case  like  this,  the 
defense  must  aUege  and  prove  a  knowledge  of  the  facts  con- 
stituting the  fraud  on  the  part  of  the  holder  —  that  is,  such 
facts  as  would  satisf}^  one  of  ordinary  prudence  and  judg- 
ment of  the  infirmity  in  the  biU ;  and  the  evidence  of  such 
facts  and  circumstances  on  the  part  of  the  holder,  as  would 
lead  to  an  inquiry  by  which  only  the  facts  constituting  the 
fraud  might  be  ascertained,  is  clearly  inadmissible."  The 
question  of  negligence,  whether  gross  or  otherwise,  or  dili- 
gence on  the  part  of  the  purchaser,  is  here  allowed  to  have 
no  influence  whatever,  even  as  a  fact  or  circumstance  by 
which  a  participation  in  the  fraudulent  ince]Dtion  or  circula- 
tion of  the  instrument  might  be  established  or  disproved. 

§  87.  Circumstances  Which  Put  Purchaser  on  His 
Guard. —  In  Cone  v.  Baldwin,-  which  was  an  action  by  the 
purchasers  of  a  negotiable  note  against  the  maker,  it  is 
conceded  that  the  defendant  was  not  bound  to  prove  that 
the  plaintiffs  purchased  with  full  and  certain  knowledge  of 
the  want  or  failure  of  consideration ;  but  that  if  the  circum- 
stances attending  the  transfer  were  such  as  to  put  them 
upon  their  guard,  they  were  bound  to  make  inquiry ;  and 
that  if  they  did  not  they  purchased  at  their  peril.  Never- 
theless, it  was  held  in  that  case  that  the  mere  statement  of 
the  pa3"ee,  in  transferring  the  note  by  delivery  to  the  plaint- 
iffs, that  they  purchased  at  their  own  risk,  was  not  a  cir- 
cumstance rendering  it  incumbent  upon  them  to  inquire 
into  the  consideration.  The  point  conceded  in  this  case 
may  hardly  be  taken  as  a  contradiction  of  the  doctrine  laid 
down  in  the  cases  previously  cited ;  though  the  principle 
upon  which  those  cases  were  determined  has  not  passed  un- 
challenged in  this  country.^  It  has  not,  liowever,  met  with 
sufficient   opposition  to   change  the  current  of  authority, 

1 10  Bush,  504. 

2 12  Pick.,  545.     See,  also,  Goddard  v.  Lyman,  14  Pick.,  268. 

sPringle  v.  Pliilliijs,  5  Sand.,  157;  Hamilton  v.  Marks,  53  Mo.,  78. 


53  NOTICE   TO   PURCHASEKS. 

which  lias  borne  constantly  in  a  direction  favorable  to  pur- 
chasers of  negotiable  paper.  One  of  the  latest  and  best 
considered  cases  upon  the  subject  presents  the  unusual 
feature  of  an  entk-e  change  of  view  by  the  same  coiu*t,  not 
only  in  respect  to  a  case  involving  the  same  question,  but 
in  deciding  the  same  case.  The  judgment  of  the  trial  court 
had  been  reversed  and  the  cause  remanded.  The  case  went 
up  the  second  time  with  instructions  given  in  accordance 
with  the  former  ruling  of  the  appellate  court.  The  first 
decision  of  reversal  was  expressly  overruled  and  the  judg- 
ment again  reversed.^  Judge  WAG^'ER,  in  rendering  the 
opinion  in  this  case,  makes  an  able  review  of  all  the  most 
important  cases,  both  English  and  American,  and  justifies 
the  departure  of  the  court  fi*om  the  former  ruling  in  the 
same  case,  upon  principle  as  well  as  authority ;  there  having 
been  several  cases  decided  subsequent  to  the  first  hearing 
in  Hamilton  v.  Marks,  where  a  doctrine  was  announced  in- 
consistent with  that  under  revicAV,  although  the  case  was 
not  expressly  overruled.-  The  conclusion  reached  by  the 
learned  judge  is  certainl}"  in  harmony  with  the  ^dews  ex- 
pressed by  the  courts  of  last  resort  of  the  principal  com- 
mercial states  of  the  Union  as  well  as  the  supreme  court  of 
the  United  States.^ 

1  Hamilton  v.  Marks,  63  Mo.,  167,  But  in  Pajme  v.  Flournoy,  29  Ark., 
500,  it  is  iield  that  it  appearing  from  the  note  that  it  was  made  payable 
to  an  executrix  in  her  representative  capacity,  was  notice  that  it  was 
assets  in  her  hands. 

^Horton  V.  Bayne,  53  Mo.,  531;  Corby  v.  Butler,  55  Mo.,  398;  Merrick 
V.  PhilHps,  58  Mo.,  436. 

3  The  nile  is  quite  general,  so  far  as  the  number  of  authorities  go, 
that  one  whose  name  appears  only  on  the  back  of  a  note  will  be  re- 
garded i)rima  fade  as  a  maker.  1  Dan'l  on  Negot.  Inst.,  §  713a. 
Citing  Eey  v.  Smipson,  23  How.,  241;  Good  v.  Martin,  95  U.  S.,  95; 
Sylvester  v.  Downer,  20  Vt.,  355;  Union  Bank  v.  Willis,  8  Mete. 
(Mass.),  504 ;  Draper  v.  Weld,  13  Gray,  580 ;  Hawkes  v.  Phillips,  7  Gray, 
284;  Woods  v.  Woods,  127  Mass.,  141;  National  Pemberton  Bank  v. 
Longee,  108  Mass.,  371;  Perkins  v.  Barstow,  9  R.  I.,  507;  Baker  v.  Rob- 
inson, 63  N.  C,  191;  Robmson  v.  Bartlett,  11  Minn.,  410;  Massey  v. 
Turner,  3  Houst.,  79;  Weatherwax  v.  Pame,  2  Mch.,  555;  Rotschild  v. 
Grix,  31  :inch.,  150;  Herbage  v.  McEntee,  40  Mich.,  337;  Sibley  v.  Mus- 


DIFFEEENT   KINDS   OF   PEOPEETT.  59 

§  88.  Bad  Faitli  an  Inference  of  Fact.— There  seems  to 
be  a  peculiarity  common  to  nearly  all  the  cases  in  which  this 
question  of  notice  is  raised.  The  inference  of  notice  which 
is  sought  to  be  drawn  from  circumstances  sufficient  to  put  a 
prudent  man  upon  inquiry  is  one  of  law  and  not  of  fact. 
The  only  question  submitted  to  the  jury  by  the  objection- 
able instruction  is  whether  there  existed  such  circumstances, 
and  from  these,  if  found,  the  com't  is  asked  to  instruct  the 
jury  that  the  legal  inference  of  notice  follows.  It  is  fi'e- 
quently  asserted  in  those  cases  requmng  actual  notice  of  the 
facts  urged  by  the  maker  or  drawer  of  negotiable  paper, 
that  the  question  of  knowledge  or  notice  is  one  of  fact; 
and  it  is  difficult  to  imagine  an  issuable  fact  which  is  not 
susceptible  of  proof  by  the  evidence  of  circumstances.  It 
ma}^,  therefore,  be  fairly  deduced  from  the  authorities,  that 
whatever  is  sufficient  to  satisfy  the  jury  that  the  purchaser 
took  the  security  in  bad  faith,  or  that  he  was  wilfully  blind 
to  the  circumstances  impeaching  its  validity,  will  warrant 
the  inference  that  he  had  actual  notice  of  the  facts.^     This 

kegan  N.  B.,  41  I\Iich.,  196;  Moynahan  v.  Hanford,  43  IMicli.,  330;  Childs 
V.  Wyman,  44  Me.,  433;  Martin  v.  Boyd,  11  N.  H.,  885;  Carpenter  v. 
Oaks,  10  Rich.,  17;  Peckliam  v,  Gilman,  7  Minn.,  449;  McComb  v. 
Thompson,  3  Minn.,  139;  Scliley  v.  Merrit,  37  Md.,  353;  Norris  v.  Des- 
pai-d,  38  Md.,  491 ;  Walz  v.  Alback,  37  Md.,  404;  Ives  v.  Bosley,  35  Md., 
263;  Third  N.  B.  v.  Lange,  51  Md.,  138;  Barr  r.  MitcheU,  7  Oreg.,  346; 
City  N.  B.  V.  Goodrich,  3  Col.,  137;  Best  v.  Hoppie,  3  Col.,  139;  Nathan 
V.  Sloan,  34  Ark.,  534;  Houghton  v.  Ely,  36  Wis.,  181;  Commonwealth 
V.  Powell,  11  Gratt.,  838;  Douglas  v.  Scott,  8  Leigh,  43;  Watson  v.  Hurt, 
6  Gratt.,  633;  Orrick  v.  Colston,  7  Gratt.,  189;  Woodward  v.  Foster,  18 
Gratt.,  213;  Mammon  v.  Hartman,  51  Mo.,  168.  And  in  Missouri  it  is 
held  that  such  an  indorser  may  be  so  held  by  an  innocent  purchaser  be- 
fore maturity,  who  has  caused  such  note  to  be  protested  for  non-pay- 
ment and  notice  to  be  given  to  the  indorser,  as  such  protest  and  notice 
are  not  competent  evidence  of  notice  of  an  agreement  between  the 
l)ayee  and  the  prima  facie  maker,  that  the  latter  should  only  be  held  as 
an  accommodation  indorser.  Chaffee  v.  Memphis,  etc.,  R.  Co.,  64  Mo., 
193. 

jPackwood  v.  Gridley,  39  111.,  388;  Buckner  v.  Jones,  1  Mo.  App.,  538; 
Edwards  v.  Thomas,  3  id.,  382;  Clerks'  Savings  Bank  r.  Thomas,  id., 
367.    In  this  connection,  the  case  of  Cass  County  v.  Greene  (66  Mo.,  498) 


60  NOTICE   TO   PUKCHASEKS. 

rule  does  not  involve  the  vagueness  and  uncertainty  of  the 
doctrine  so  often  insisted  upon,  and,  as  we  have  seen,  so 
generally  repudiated,  that  the  purchaser  of  negotiable  se- 
curities is  to  be  charged  with  notice  of  their  latent  infirmi- 
ties merely  by  the  existence  of  circumstances  sufficient,  in 
the  opinion  of  the  jury,  to  put  a  man  of  ordinary  prudence 
upon  inquiry. 

is  a  noteworthy  example.  Tliis  was  a  proceeding  by  injunction  to  pre- 
vent the  negotiation  of  certain  fraudulently  issued  bonds  in  the  hands 
of  defendant,  who  claimed  to  be  an  innocent  pm-chaser  for  value  before 
maturity.  The  court,  in  aflSLrming  the  decree  enjoining  the  ti'ansfer  of 
the  bonds,  based  its  judgment  upon  the  gi'ound  that  defendant  had 
actual  notice  of  the  infirmities  of  the  bonds,  though  there  was  no  evi- 
dence of  such  actual  notice  other  than  the  inferences  to  be  di-awn  from 
the  conduct  of  defendant,  and  his  oiiportunities  for  arriving  at  a  knowl- 
edge of  the  facts.  Defendant  was  not  the  fii-st  purchaser,  and  sought  to 
shelter  liimself  under  the  absence  of  notice,  both  to  himself  and  to  the 
first  pm-chaser.  But  the  facts  and  cucumstances  from  wliich  notice  to 
the  defendant  was  inferred  pointed  \vith  even  more  unmistakable  direct- 
ness to  the  fii"st  purchaser,  as  having  notice  of  the  fraud  with  which  the 
securities  were  tainted.  The  bonds  were  first  purchased  from  one  of  the 
persons  originally  concerned  in  then*  fraudulent  issue,  by  a  banking 
copartnership,  and  the  notice  imputed  to  the  fii-m  was  shown  by  purely 
cu-cumstantial  evidence  to  have  been  communicated  to  one  of  its  mem- 
bers. The  decision  in  this  case  was  held  not  to  be  in  conflict  with  the 
adjudication  of  the  same  question,  last  theretofore  made  by  the  same 
court,  where  it  was  held,  in  substance,  that  facts  and  chcumstances  com- 
ing to  the  knowledge  of  a  pirrchaser  for  value  of  negotiable  paper,  suffi- 
cient to  put  a  man  of  ordinary  pnidence  upon  inquuy,  would  not  suffice 
to  affect  the  paper  in  his  hands  if  purchased  before  matiu'ity.  Hamil- 
ton r.  Mai'ks,  63  Mo.,  167;  supra,  §  87.  Though  the  facts  and  circimi- 
stances  rehed  on  in  tliis  case  were  such  as  would  tend  to  put  a  purchaser 
upon  inquuy,  and  the  defendant  testified  to  his  want  of  knowledge  prior 
to  his  purcliase,  the  inference  drawn  from  the  chcumstances  was  that, 
as  a  matter  of  fact,  he  had  received  notice  when  he  made  the  purchase 
of  the  bonds.  To  prove  notice  or  knowledge  in  a  case  of  this  kind  does 
not  require  evidence  of  a  higher  character  than  what  would  be  sufficient 
to  establish  any  other  disputed  fact.  In  transactions  of  this  kind,  where 
the  omLS  of  showing  good  faith  is  cast  upon  the  purchaser  of  negotiable 
pai^er,  it  will  not  be  sufficient  for  him  to  show  that  he  did  not  know  of 
the  infirmities  of  the  paper  so  long  as  it  appears  that  he  believed  in  their 
existence.  And  the  fact  of  such  behef  might  readily  be  inferred  from 
evidence  tliat  he  had  reason  so  to  believe. 


DIFFEKENT   KINDS   OF   PEOPEETY.  61 

§89.  Stolen  Securities  —  Ayoidaiice  of  Knowledge. — 

In  one  of  the  later  cases  where  this  question  was  exam- 
ined by  the  commissioner  of  appeals  of  the  state  of  New 
York,  in  commenting  upon  the  error  of  the  trial  court 
in  excluding  evidence  which,  it  was  alleged,  tended  to  prove 
good  faith  on  the  part  of  the  purchaser,  undue  weight  seems 
to  have  been  given  to  what  might  be,  in  cases  disclos- 
ing parallel  facts,  a  wilful  avoidance  of  the  knowledge 
which,  if  communicated,  would  have  rendered  the  pur- 
chase an  act  of  bad  faith.^  There  printed  notices  of  the 
larceny  of  certain  negotiable  securities  were  left  at  the 
place  of  business  of  the  banking  corporation  sought  to  be 
charged,  prior  to  the  purchase  of  the  stolen  secm'ities,  and 
one  of  the  excuses  deemed  admissible  in  evidence,  for  the 
utter  disregard  of  such  notices  by  the  officers  of  the  bank, 
was  that  the  exigencies  of  their  business  were  such,  and  their 
deahngs  in  such  securities  so  extensive,  that  the  time  could 
not  be  spared  to  read  and  record  the  large  number  of  such 
notices  left  at  their  place  of  business,  warning  them  of  the 
stealing-  of  similar  securities.  The  exigencies  of  one's  own 
business,  when  adopted  by  him,  as  an  absolute  standard  by 
which  his  duty  to  others  is  to  be  measured,  seems  fraught 
with  danger  to  all  honest  people  except  the  one  who  adopts 
it.  A  banking  institution  in  the  city  of  E"ew  York,  under- 
stood to  be  dealing  so  largely  in  negotiable  securities  that 
its  officers  were  justified  in  ignoring  all  warnings  with  re- 
spect to  stolen  securities,  would  be  able  to  offer  absolute 
security  to  thieves, 

§  90.  Inquiry  Excited  by  Inspection  of  Paper. —  The 
principle  upon  which  knowledge  or  information  of  facts 
merely  sufficient  to  put  the  party  upon  inquiry  may  be 
ignored  has  no  application  where  the  knowledge  is  derived 
from  an  inspection  of  the  instrument  itself,  and  points  di- 
rectly to  a  defect  which  requires  explanation  from  the 
holder.2  Neither  does  it  apply  where  the  inquiry  excited 
by  circumstances  may  be  prosecuted  to  knowledge,  by  an 

iSeybel  v.  Nat.  Cur.  B'k,  54  N.  Y.,  288. 

2  Ayer  v.  Hutchins,  4  Mass.,  370;  Hall  v.  Hale,  8  Conn.,  336. 


62  NOTICE  TO   PUECnASERS. 

inspection  of  the  instrument.  As  where  the  purchaser  has 
knowledge  of  facts  showing  that  certain  secimties  have 
been  lost  by  tlie  holder,  or  that  he  has  been  fraudulently 
deprived  of  the  possession  thereof,  and  the  facts  of  which 
he  has  Imowledge  include  a  description  of  the  lost  instru- 
ments, by  numbers  or  other  distinguishing  marks ;  here  in- 
quiry may  be  said  to  be  necessary  in  order  to  identify  an 
instrument  of  the  general  character  of  those  lost  or  stolen 
which  may  be  offered  him  as  one  of  the  missing  securities. 
The  inquiry,  however,  need  extend  no  further  than  the  face 
of  the  instrument ;  but  if  it  falls  short  of  this,  he  purchases 
at  his  peril.  ^ 

§91.  When  General  Notice  Snffleient.— In  Craft's 
Appeal,"  two  kinds  of  notice  are  recognized  as  sufficient  to 
affect  purchasers  of  negotiable  paper,  transferred  before 
due.  These  are  styled  "  particular  or  explicit,"  and  '•  gen- 
eral or  implied,"  corresponding  substantially  to  our  classifi- 
cation of  express  and  implied.'*  And  it  is  there  held  that  a 
wilful  or  fraudulent  failure  to  inquire  into  circumstances 
known  to  be  such  as  to  invite  inquiry  would  warrant  the 
jury,  if  they  believed  from  the  evidence  that  such  absti- 
nence was  from  the  belief  that  inquiry  would  result  in  find- 
ing the  note  invalid,  in  regarding  it  as  a  case  of  general 
notice.  And  though  mere  negligence,  however  gross  it  may 
be,  is  not  regarded  as  amounting  to  wilful  or  fraudulent 
blindness,  it  is  mentioned  as  proper  for  submission  to  the 
jury  in  connection  with  other  circmnstances  tending  to 
prove  such  general  notice ;  but  if,  notwithstanding  the  ab- 
sence of  such  caution  and  prudence  in  making  the  purchase 
as  should  be  exercised  in  the  ordinary  affairs  of  life,  the 
transaction  was  honest  on  the  part  of  the  purchaser,  and  in 
the  regular  course  of  his  business,  he  will  hold  the  paper 
discharged  of  prior  equities.* 

1  Howry  v.  Eppingef,  34  Mich.,  29;  Craft's  Appeal,  42  Conn.,  146; 
Buckner  v.  Jones,  1  Mo.  App.,  538. 

2  42  Conn.,  146. 

3  Ante,  %5  et  seq. 

*  SwaU  V.  aarke,  51  Cal.,  227. 


DIFFEKEXT   KINDS    OF    PKOPEETY.  63 

§  92.  Suspicious  Circumstances. —  But  the  circum- 
stances by  which  it  is  sought  to  prove  that  a  purchaser  of 
negotiable  paper  took  with  knowledge  of  equities  between 
the  original  parties  must  be  of  a  character  in  themselves 
suspicious.  The  inquiry  excited  must  have  reference  to 
some  matter  affecting  the  validity  of  the  instrument.  It 
will  not  be  suiEcient  that  the  circumstances  attending  the 
transaction,  or  even  the  memoranda  on  the  paper  itself,  are 
unusual  or  extraordinary.  Unless  they  direct  attention  to 
some  infirmity  of  the  instrument,  it  will  be  safe  for  the  in- 
dorser  to  disregard  them.  Accordingly,  where  a  note  con- 
tained the  memorandum,  "secured  by  mortgage,"  this  was 
held  not  sufficient  to  put  a  purchaser  upon  inquiry,  nor  to 
charge  him  with  notice  of  the  contents  of  such  mortgage. 
And  the  mere  fact  that  the  mortgagee  mentioned  in  the 
mortgage  by  which  the  note  was  secured  was  a  different 
person  from  the  paj^ee  of  note  was  held  insufficient  to  make 
it  the  duty  of  the  purchaser  to  inquire  as  to  the  validity  of 
the  note.' 

§  92a.  The  Time  When  Notice  Must  be  Acquired  to 
Affect  Purchasers. —  The  notice  or  knowledge  of  defects 
in  the  instrument,  or  frauds  practiced,  which  tend  to  de- 
feat the  purchaser's  rights,  must  be  acquired  prior  to  or  at 
the  time  of  the  purchase.'  The  time  of  the  purchase  is  de- 
termined not  so  much  by  the  date  of  the  contract  of  pur- 
chase as  that  of  payment.  Payment  of  the  agreed  price  is 
a  necessary  completion  of  the  contract,  before  notice  is  re- 
ceived, to  render  it  a  purchase  for  value  and  without  notice,^ 

§  93.  Payment  Before  and  After  Notice. —  The  protec- 
tion afforded  to  purchasers  of  negotiable  instruments  before 
maturity  is  intended  to  benefit  those  who  have  not  only 
acted  in  good  faith  and  without  notice  of  the  infirmities 

iHovsrrey  v.  Eppinger,  34  Mich.,  29. 

2Hanauer  v.  Doane,  13  Wall.,  342;  Kasson  v.  Smith,  8  Wend.,  437; 
Fisher  v.  Leland,  4  Cush.,  456;  Skilding  v.  Warren,  15  Johns.,  270; 
Norvell  v.  Hudgins,  4  Munf.,  496;  Ryland  v.  Brown,  2  Head,  270; 
Harrisburg  Bank  v.  Meyer,  6  Serg.  &  R.,  537. 

sCrandell  v.  Vickery,  45  Barb.,  156. 


64  NOTICE   TO    PUKCIIASEKS. 

affecting  the  instrument  in  the  hands  of  the  original  payee, 
but  have  paid  value  therefor.  One  Avho  has  paid  nothing  prior 
to  notice  would  not  be  protected  in  his  purchase,  and  if  a 
partial  pa3'ineut  is  made,  the  protection  Avill  only  extend  to 
the  amount  actually  paid  prior  to  notice,  and  as  to  that  paid 
subsequently  he  will  be  treated  as  a  purchaser  mala  fide} 
And  if  notice  is  received  after  a  partial  payment,  the  pro- 
tection only  goes  to  the  extent  of  the  l>ona  fide  payment. 
As  to  so  much  of  the  consideration  as  is  paid  after  notice, 
the  purchaser  will  be  regarded  as  a  holder  in  bad  faith.- 

§  94r.  Patent  Defects  Affecting  Purchasers. —  Cases  are 
frequently  cited  in  support  of  the  application,  to  negotiable 
instruments,  of  the  doctrine  of  implied  notice,  which  upon 
examination  appear  to  be  inapplicable,  for  the  reason  that 
the  matters  therein  set  up  in  defense,  and  Avhich  are  sup- 
posed to  challenge  inquiry,  are  apparent  on  the  face  of  the 
instruments,  and  if  unexplained  utterly  destroy  their  nego- 
tiability.^ A  note  or  bill  payable  to  bearer,  or  to  the  order 
of  the  payee  therein  named,  after  it  has  been  dishonored, 
can  no  more  be  protected  in  the  hands  of  a  subsequent  pur- 
chaser as  negotiable  paper  transferred  before  maturity,  than 
though  it  had  never  contained  words  of  negotiability.* 
Therefore,  if  such  an  instrument  appears  on  its  face  to  have 
been  dishonored  by  non-payment  or  non-acceptance,  it  drops 
out  of  its  place  as  a  negotiable  instrument  protected  by  the 
law  merchant,  and  so  far  from  its  being  necessary  to  bring 
a  knowledge  of  its  latent  defects  home  to  the  purchaser,  in 
order  to  charge  him,  he  is  bound  b}^  the  equities  subsisting 
between  the  original  parties  without  an}-  notice  at  all.^ 

iHaescig  v.  Brown,  34  Mich.,  503;  Cass  County  v.  Green,  supra,  §  88, 
note. 

2 Dresser  v.  Misso.,  etc.,  R.  Co.,  93  U.  S.,  93;  Weaver  v.  Borden,  49  N. 
Y.,  286. 

3HaU  V.  Hale,  8  Conn.,  336;  Crossly  v.  Ham,  13  East,  498. 

■»!  Daniel,  Negot.  Inst.,  593;  Andi-ews  v.  Pond,  13  Pet.,  65;  Angles. 
N.  W.,  etc.,  Ins.  Co.,  92  U.  S.,  341;  Goodman  v.  Hai-vey,  4  Ad.  &  El., 
870;  Fowler  v.  Brantley,  14  Pet.,  318;  Swift  v.  Smith,  103  U.  S,,  443. 

5 Fowler  v.  Brantley,  14  Pet.,  318. 


DIFFEEENT   KINDS    OF    PEOrERTT.  C5 

§  Ola.  Notice  of  Want  or  Failure  of  Consideration.— 

One  of  the  defenses  which  the  maker  of  a  note,  whether 
negotiable  or  not,  may  set  up  to  an  action  by  the  payee,  is 
want  of  consideration,^  or  failure  of  consideration  either  in 
whole  or  in  j^art,^  It  follows  that  in  a  proper  case  of  notice 
of  such  want  or  failure,  the  same  defense  may  be  made 
when  the  action  is  by  an  indorsee."  But  the  fact  of  which 
the  purchaser  is  notified  must  be  of  something  more  than 
that  the  consideration  was  some  particular  commodity,  un- 
less it  be  an  illegal  consideration,  or  one  which  is  inherently 
insufficient  to  support  the  contract  between  the  parties.  The 
mere  fact  that  the  consideration  is  particularh^  described  in 
the  note  or  bill  does  not  impose  upon  the  purchaser  the 
duty  of  inquiring  into  the  circumstances  of  its  actual  de- 
livery to  the  maker,  its  value,  or  conformity  to  the  terms  of 
any  warranty  that  may  have  been  given  by  the  payee.^ 
Thus  in  Michigan  it  was  held  that  the  fact  appearing  upon 
the  face  of  the  note,  that  it  was  given  for  a  patent  right, 
would  not  put  the  purchaser  upon  inquiry,  and  charge  him 
with  notice  of  any  fraud  practiced  upon  the  maker  by  the 
vendor  of  such  right.'^  And  in  N'ew  York,  that  where  it 
was  stated  on  the  face  of  the  note  that  the  article  for 
which  the  note  was  given  was  warranted,  would  not  authorize 
the  inference  that  the  purcha,se  was  made  with  notice  of 
the  breach  of  such  warrant}^^  If,  however,  the  pm'chaser 
has  notice  that  the  note  was  given  in  consideration  of  an 

1  Murphy  v.  Keyes,  39  N.  Y.  Sup.  Ct.,  18;  Spurgin  v.  McPlieeters,  42 
Ind.,  527. 

2  Dickinson  r.  HaU,  14  Pick.,  217;  Drew  v.  Towle,  27  N.  H.,  412;  1 
Dan'l  on  Negot.  Inst.,  §  203. 

3  Rand  v.  State,  77  N.  C,  175;  Dogan  v.  Dubois,  2  Rich.  Eq.,  85;  Len- 
heim  v.  Fay,  27  Mich.,  70;  Coffman  v.  Wilson,  2  Met.  (Ky.),  542. 

••Borden  v.  Clark,  26  Mich.,  410;  Sackett  v.  Kellar,  23  Oliio  St.,  554; 
Beardslee  v.  Horton,  3  Mich.,  560;  Loomis  v.  Moni-y,  15  N.  Y.  (S.  C), 
312;  Dohertyr.  Peny,  38  Ind.,  15;  Miller  v.  Finley,  36  Mich.,  255;  Has- 
keU  V.  Jones,  86  Pa.  St.,  173.  Contra,  Tlurall  v.  Horton,  44  Vt.,  886. 
See,  also.  Rand  v.  State,  77  N.  C,  175. 

■■*  Miller  t'.  Finley,  26  Mich.,  255. 

8  Loomis  r.  Monry,  15  N.  Y.  (S.  C),  812. 
5 


GQ  NOTICE   TO    PUECHASERS. 

executory  contract,  and  that  there  has  been  a  breach  of  the 
contract  on  the  part  of  the  payee,  the  purchaser  cannot  re- 
cover.* But  it  is  held  otherwise,  if  the  notice  goes  no 
farther  than  the  fact  tliat  the  contract  of  Avhich  the  note 
was  the  consideration  was  executory ;  for  the  obvious  rea- 
son tliat  the  presumption  would  be  that  its  terms  had  been, 
or  would  be,  carried  out  in  good  faith,  rather  than  that  there 
had  been  a  breach  by  the  contractor.^ 

The  doctrine  that  notice  of  want  of  consideration  be- 
tween the  original  parties  will  defeat  the  action  of  the 
purchaser  docs  not  applv  to  accommodation  paper.  The 
very  nature  of  the  transaction  excludes  any  such  defenses. 
Its  purpose  is  much  the  same  as  a  letter  of  credit  from  the 
maker,  and  to  admit  the  defense  of  want  of  consideration 
against  a  purchaser  would  be  to  defeat  the  very  object  for 
which,  it  was  issued.*  But  the  exemption  of  the  holder  of 
accommodation  paper  does  not  extend  its  protection  to 
matters  that  are  in  violation  of  the  terms  upon  which  the 
maker  executed  the  same.  If  the  pm-chase  is  made  with 
notice  of  any  such  violation  of  the  terms  of  the  original 
contract,  the  accommodation  maker  or  indorser  cannot  be 
held  liable  to  the  purchaser.'* 

§  Oil).  Notice  of  Diversion  of  Accommodation  Paper. — 
Such  a  violation  of  contract  is  the  diversion  of  the  paper 
from  the  original  purpose  for  which  it  was  issued,  par- 
ticularly if  the  accommodation  maker  or  indorser  were 

1  Bowman  v.  Van  Kuren,  29  Wis.,  218;  Wagner  r.  Dieclrich,  50  Mo., 
484. 

2 Patten  v.  Gleason,  106  Mass.,  439;  Bend  v.  Weitze,  12  Wis.,  611; 
Davis  V.  McCready,  17  N.  Y.,  280;  Croix  v.  Sibbett,  15  Pa.  St.,  238. 

3  Thatcher  v.  West  River  Nat.  Bank.  19  Mich.,  196;  Grant  v.  Ellicott,  7 
Wend.,  227;  PoTvell  x\  AVaters,  17  Johns.,  176;  Grandin  v.  Leroy,  2 
Paige,  509;  Bank  of  Ireland  r.  Beresford,  6  Dow.,  237;  Jones  v.  BeiTy- 
hill,  25  Iowa,  289;  Stephens  v.  Monongahela  Nat.  B'k,  87  Pa.  St.,  163: 
Crouise  v.  Kellogg,  20  111.,  11;  Mentross  v.  Clark,  2  Sandf.,  115. 

4  Daggett  V.  Wliiting,  35  Conn.,  372;  Small  v.  Smitli,  1  Den.,  583; 
Hickerson  v.  Raignell,  2  Heisk.,  329;  Fetters  v.  Muncie  Nat.  B'k,  34 
Ind.,  251 ;  Hidden  v.  Bishop,  5  R.  I.,  29 ;  Roberts  v.  Eden,  1  Bos.  &  Pull., 
398;  Key  v.  Flint,  8  Taunt.,  21 ;  Lord  v.  Ocean  Bank,  20  Pa.  St.,  384. 


DIFFEKEJs^T    Ki:rsDS    OF"  PKOPERTY.  67 

interested,  directly  or  indirectly,  in  having  that  purpose 
carried  into  effect.^  But  such  diversion  must  be  in  respect 
to  some  substantial  matter,  and  not  a  mere  variance  in  the 
mode  of  accomplishing  the  same  result.  Thus,  if  a  note  is 
made  to  enable  the  party  Avho  is  to  put  it  into  circulation 
to  raise  money  by  discounting  it  at  a  particular  bank,  it  is 
not  a  fraudulent  diversion  from  the  original  design  to  have 
it  discounted  at  a  different  bank,  or  used  for  the  pa3nnent 
of  a  debt,  "where  there  is  no  fraud,  and  the  interest  of  the 
accommodating  party  is  not  thereby  prejudiced.^  Where 
an  accommodation  note  was  made  for  the  specific  purpose  of 
purchasing  property  upon  which  the  accommodation  party 
Avas  to  have  a  mortgage,  and,  contrary  to  the  agreement, 
traded  the  note  for  similar  property  to  another  party,  it  was 
held  that  the  latter  could  recover  from  the  accommodation 
party,  although  he  knew  that  the  note  was  designed  to  be 
used  in  the  purchase  of  the  other  property,  but  did  not 
l.now  that  it  was  to  be  mortgaged.^  When,  however,  the 
party  giving  the  accommodation  has  a  direct  interest  in 
having  it  used  for  the  particular  purpose  for  which  it  was 
designed ;  as  where  it  is  to  take  up  notes  at  a  bank  where 
it  is  to  be  discounted,  upon  which  notes  the  accommodation 
party  is  liable,  a  failure  to  use  it  in  that  manner  and  for  the 
purpose  agreed  upon  is  a  misappropriation  or  diversion.* 

I  Thompson  v.  Posten,  1  Duvall,  415;  Evans  v.  Kymer,  1  Barn.  &  Ad., 
528;  Buchanan  v.  Findlay,  9  Barn.  &  Cres.,  738;  supra,  §  94a. 

-  Daniel  on  Negot.  Inst.,  §  792;  citing  Duncan  &  Sherman  v.  GUbert, 
29  N.  J.  L.,  531;  Jackson  r.  First  Nat.  B'k,  42  N.  J.  L.,  178;  Briggs  v. 
Boyd,  37  Vt.,  538 ;  Purchase  v.  Mattison,  6  Duer,  587;  Wardell  v.  Howell, 
gWend.,  170;  Mohawk  Bank  v.  Corey,  1  Hill,  513;  PoweU  v.  Waters, 
17  Johns.,  176;  Bank  of  Chenango  v.  Hyde,  4  Cow.,  567;  Schepp  v. 
Carpenter,  51  N.  Y.,  602;  Eeed  v.  Trentman,  53  Ind.,  438;  Brooks  v. 
Hey,  23  Hun,  372;  1  Daniel  on  Negot.  Inst.,  §  793a,  citing  Quinn 
V.  Hard,  43  Vt.,  375;  Fetters  v.  Muncie  Nat.  B'k,  34  Ind.,  254;  Dunn  v. 
"Weston,  71  Me.,  270;  Kimbro  v.  Lytle,  10  Yerg.,  417;  Eutland  Bank  v. 
Buck,  5  Wend.,  66;  Dawson  v.  Goodyear,  43  Conn.,  548;  but  see  Mer- 
chants' Nat.  B'k  V.  Comstock,  55  N.  Y.,  24. 

3  Laub  V.  Rudd,  37  Iowa,  618. 

4WardeU  v.  HoweU,  9  Wend.,  170;  Kasson  v.  Smith,  8  Wend.,  437; 
Moore  v.  Ryder,  65  N.  Y.,  440;  Comstock  v.  Hier,  73  N.  Y.,  269;  Dennis- 
ton  V.  Bacon,  10  Johns.,  198. 


68  KcrncE  to  purchasers. 

There  is  little  or  no  conflict  of  authority  upon  the  propo- 
sition that,  when  there  is  a  substantial  diversion  or  misap- 
propriation of  paper  of  this  character  from  its  agreed 
purpose,  the  purchaser  thereof  with  notice  of  the  agree- 
ment and  the  breach  will  hold  it  subject  to  the  accommo- 
dation party's  defense  on  this  gromid.  But  there  seems 
some  conflict  as  to  the  effect  of  such  misappropriation  on 
the  burden  of  proof.  In  Is'ew  Tork  it  is  held  that  the 
diversion  is  a  fraud  upon  the  accommodation  party,  and 
shifts  the  burden  of  proof  upon  the  purchaser,  requiring 
him  to  show  that  he  was  a  purchaser  in  good  faith,  and  in 
the  ordinary  course  of  business  for  a  valuable  considera- 
tion.^ On  the  other  hand,  it  is  maintained  that  when  such 
a  defense  is  made,  it  rests  with  the  accommodation  party  to 
show  not  only  a  substantial  diversion,  but  that  the  same 
was  known  to  the  holder  at  the  time  of  his  purchase.^ 

iWardell  v.  Howell,  9  Wend.,  170;  Farmers',  etc.,  Nat'l  B'k  v.  Noxon, 
45  N.  Y.,  762;  Spencer  v.  BaUou,  18  N.  Y.,  331;  Grocei-s'  Bank  v.  Pen- 
field,  7  Hun,  279. 

2  Clark  V.  Thayer,  105  Mass.,  216;  Stoddard  v.  Kimball,  6  Cush.,  469 
Robertson  v.  Williamson,  5  Munf.,  331;  Dunn  v.  Weston,  71  Me.,  270 
Gray  v.  Bank  of  Ky.,  29  Pa.  St.,  365;  Holme  v.  Kansper,  5  Binn.,  469 
1  Dan'l  on  Negot.  Inst.,  §  814. 


CHAPTEK  III. 

NOTICE  BY  REGISTRATION  OF  INSTRUIVIENTS. 

I.  The  General  Scope  and  Operation  of  the  Statute. 

II.  Recordable  Instridients. 

IIL  Statutory  Prerequisites  to  Recording. 
rv.  Errors  in  the  Record. 
V.  Errors  by  the  Party  Filing  the  Instrument. 
VI.  Conflicting  Titles  Affected  by  Priority  of  Registration. 
VII.  Other  Notice  Considered  in  Connection  With  Registration. 

I.  The  General   Scope  and   Operation   of   the   Statute. 

§  95.  Registry  Provided  for  by  Statute. 

96.  Object  of  American  Registiy  Acts. 

97.  Registration  Notice  to  Subsequent  Purchasers. 

98.  To  Affect  Purchasers  Must  be  Properly  of  Record. 

99.  Prerequisite  to  Registi-ation. 

100.  Subscribing  Witnesses. 

101.  When  Instrument  to  be  Filed. 

102.  Consequence  of  Delay  in  Filing. 

103.  Exceptional  Legislation. 

104.  English  and  Irish  Registry  Acts. 

105.  Equitable  Mortgage. 

106.  Registiy  of  Marriage  Settlement. 

107.  Irish  Act. 

108.  Registered  Mortgage  and  Unregistered  Will. 

109.  Registered  Legal  Mortgage  and  Unregistered  Equitable  Mortgage. 

110.  Memorandum  of  Further  Charge. 

III.  Agi-eement  to  Mortgage. 
113.  Acknowledgment. 

§  95.  Registry  Provided  for  by  Statute. —  The  registry 
of  instruments  affecting  the  title  to  property,  being  provided 
for  entirely  by  legislative  enactment,  can  only  be  treated 
"with  reference  to  its  effect  as  notice  by  giving  as  near  as 
may  be  the  judicial  construction  placed  upon  the  different 
statutes.  This  could,  no  doubt,  be  more  thoroughly  accom- 
plished by  copying  each  statute  in  extenso,  and  then  giving 


70  NOTICE   BY   REGISTRATION   OF   INSTRUMENTS. 

the  decisions  under  them.  But  this  course  "svould  involve 
the  necessity  of  extending  this  treatise  to  an  unwarranted 
length  for  the  doubtful  benefit  of  presenting  a  body  of 
statute  law  which  might  be  undergoing  changes  while  the 
work  was  passing  through  the  press.  The  most  that  can 
be  safely  undertaken  in  this  direction  is  to  present  some  of 
the  most  striking  points  of  difference  in  the  recording  acts 
of  the  different  states  of  the  Union.  Those  of  Great  Lrit- 
ain  are  so  essentially  different  in  their  scope  and  adminis- 
tration, that,  for  a  practical  work  upon  a  subordinate  branch 
of  the  law,  it  could  hardly  be  proiitable  to  compare  them  in 
detail  with  the  acts  of  our  own  legislative  bodies, 

§  96.  Object  of  American  Registry  Acts.— The  gen- 
eral spirit  and  object  of  the  different  American  registry 
acts  are  substantially  the  same.  They  are  intended  to  fur- 
nish the  best  and  most  easily  accessible  evidence  of  the 
titles  to  real  estate,  to  the  end  that  those  desiring  to  pur- 
chase ma}^  be  fully  informed  of  instruments  of  prior  date, 
affecting  the  subject  of  their  contemplated  purchases.  And 
also  that,  having  availed  themselves  of  this  means  of  knowl- 
edge, they  m'ay  rest  there,  and  purchase  in  absolute  security, 
provided  they  do  so  without  knowledge,  information  or  such 
suggestions  from  other  facts  as  would  be  gross  negligence 
to  ignore,  of  some  antecedent  conveyance  or  equitable 
claim.^  But  in  order  that  the  subsequent  purchaser  may  be 
able  to  maintain  the  superiority  of  his  title  as  against  the 
prior  purchaser,  w^ho  has  failed  to  deposit  his  deed  for  rec- 

iSee  Brooks'  Appeal,  64  Pa.  St.,  127;  Bratton's  Appeal,  8  Pa.  St., 
164;  Foster's  Appeal,  3  Pa.  St.,  79;  Dungan  v.  Am.,  etc.,  Ins.  Co.,  53 
Pa.  St.,  253;  Ebner  v.  Gounclis,  5  Watts  &  S.,  49;  Cover  v.  Black,  1 
Barr.,  493;  Path  v.  Anstatt,  4  W.  &  S.,  307;  Stewai-t  v.  Freeman,  10 
Harris,  123;  Cockey  v.  IMilne's  Lessee,  16  Md.,  207;  Walsh  v.  Boyle,  30 
Md.,  267;  Busey  v.  Reese,  38  Md.,  264;  Nelson  v.  Hagerstown  Bank,  27 
Md.,  51;  Homer  v.  Grosholz,  38  Md.,  521;  Glenn  v.  Davis,  35  Md.,  215; 
Abrams  v.  Sheehan,  40  Md.,  446;  Kane  v.  Roberts,  40  Md.,  590;  HaiTal 
V.  Gray,  10  Neb.,  189;  Hooker  v.  Hammil,  7  Neb.,  234;  Lincoln,  etc., 
Ass'n  V.  Hass,  10  Neb.,  583;  Jones  v.  Jolmson,  etc.,  Co.,  8  Neb.,  451; 
Hays  V.  McGuii-e,  8  Yerg.,  92;  Thomas  v.  Blackmore,  5  Yerg.,  113; 
Vance  v.  McNairy,  3  Yerg.,  176;  Shields  v.  l^litchell,  10  Yerg.,  8. 


GENERAL    SCOPE   AIS'D    0PEKATI(3N    OF    STATUTE.  Tl 

ord,  sometliing  further  is  in  general  required.  The  general 
tenor  of  the  statutes  is,  that  conveyances  not  properly  re- 
corded shall  be  held  void  as  against  a  subsequent  bona  fide 
purchased  or  incumbrancer,  for  a  valuable  consideration, 
whose  deed  is  first  filed  for  record.  Hence,  the  advantage 
only  lies  with  the  subsequent  purchaser  by  virtue  of  prior- 
ity in  placing  his  deed  on  record.^  Some  of  the  statutes, 
however,  provide  that  unregistered  deeds  shall  be  void  not 
only  against  subsequent  purchasers  without  notice,  but  also 
as  against  creditors  of  the  vendor  or  mortgagor.-  And  in 
others,  where  creditors  are  not  specially  mentioned,  all  in- 
struments affecting  the  title  are  declared  void,  against  all 
persons  except  the  parties  thereto  and  their  heirs,  or  those 
having;  notice,  until  filed  for  record.^    But  in  the  state  of 

1  Westbrook  v.  Gleason,  79  N.  Y.,  23;  Page  v.  Waring,  76  N.  Y.,  463; 
Judson  V.  Dada,  79  N.  Y.,  373:  Lacustrine,  etc.,  Co.  v.  Lake  Guano,  etc., 
Co.,  82  N.  Y.,  476;  Schutt  v.  Large,  6  Barb.,  373;  Hoyt  v.  Thompson,  .5 
N.  Y.,  347;  Ti-uscott  v.  King,  6  Barb.,  346;  Newton  v.  McLean,  41  Barb., 
285;  Odd  Fellows'  S.  B'k  v.  Banton,  46  Cal.,  604;  Snodgrass  v.  Bicketts, 
13  Cal.,  360;  Landers  v.  Bolton,  26  Cal.,  393;  Packai-d  v.  Johnson,  51 
Cal.,  545;  Frey  v.  Clifford,  44  Cal.,  335;  Patterson  r.  Donner,  48  Cal., 
369;  Wilcoxson  v.  Miller,  49  Cal.,  193;  Mahoney  v.  Iiliddleton,  41  Cal., 
41;  Smith  v.  Yule,  31  Cal.,  180;  Fail-  v.  Stevenot,  29  Cal.,  486;  Jones  v. 
Mai-ks,  47  Cal.,  242;  Thompson  v.  Pioche,  44  Cal.,  508;  O'Rourke  v. 
O'Coiuior,  39  Ctil.,  4-12;  Vassault  v.  Austin,  36  Cal.,  691;  La^^■ton  v.  Gor- 
don, 37  Cal.,  203;  Fogai-ty  v.  SaAvyer,  23  Cal.,  570;  Grellet  v,  Heilshorn, 
4  Nev.,  526;  Warner  v.  Whittaker,  6  Mich.,  133;  WHcox  v.  Hill,  11 
Mich.,  256;  Doyle  v.  Stevens,  4  Mich.,  87;  BaiTows  v.  Bauglmian,  9 
Mich.,  213;  Rood  v.  Chapin,  Walk.  Ch.,  79;  Coy  v.  Coy,  15  Muin.,  119; 
Godfrey  v.  Disbrow,  Walk.  Ch.,  260;  Smith  v.  Gibson,  15  JXmn.,  89;  Ed- 
minster  V.  Higgins,  6  Neb.,  269;  Metz  v.  State  B'k,  etc.,  7  Neb.,  171; 
Colt  V.  Du  Bois,  7  Neb.,  394;  Galway  v.  Malchow,  7  Neb.,  289;  Dorsey  v. 
Hall,  7  Neb.  465;  Berkley  v.  Lamb,  8  Neb.,  399;  Mansfield  v.  Gregory,  8 
Neb.,  435. 

2  Graves  v.  Ward,  2  Duv.,  301.  See,  also,  Byers  v.  Engle,  16  Ai-k.,  543; 
Ducoway  v.  Gait,  20  Ark.,  190;  Hamilton  v.  Fowlkes,  16  Ai-k.,  340; 
Koons  V.  Grooves,  20  Iowa,  373 ;  Senter  v.  Turner,  10  Iowa,  517 ;  Dargin 
V.  Beeker,  10  Iowa,  571 ;  May  v.  McKeenon,  6  Humph.,  209. 

3  Reed  v.  Ownby,  44  Mo.,  204;  School  Dist.  v.  Taylor,  19  Kans.,  287; 
Wickersham  v.  Chicago,  etc.,  Co.,  18  Kans.,  487;  Claggett  v.  Crall,  13 
Kans.,  393;  Johnson  v.  Clark,  18  Kans.,  157;  Stewart  v.  Clark,  13  Mete. 
(Mass.),  79;  Hynt  v.  Arnold,  2  Mete.  (Mass.),  619;  Coffin  v.  Ray,  1  Mete, 


72  NOTICE   BY    KEGISTRATION   OF    INSTRUMENTS. 

Alabama  the  deed  is  valid  against  creditors  other  than 
tliose  by  judgment.' 
§  97.  Registration  Notice  to  Subsequent  Purchasers.— 

It  may  be  stated,  then,  as  a  vule  a})[)liealjlu  to  almost  all  the 
states,  that  where  an  instalment  by  which  the  title  to  real 
estate  is  affected  is  propcrl}^  recorded,  the  record  thereof  is 
constructive  notice  to  subsequent  purchasers  or  incumbran- 
cers under  the  same  grantor.  Tiiere  are  a  few  exceptions 
to  this  doctrine,  and  these  for  the  most  part  apply  to  con- 
veyances of  equitable  rights  or  interests.-  But  as  a  general 
rule  an}^  instrument  affecting  the  title,  which  is  properly 
recorded,  is  absolute  notice  to  every  one  subsequently  deal- 
ing with  the  title,  irrespective  of  whether  such  person  has 
examined  the  records,  or  even  had  an  opportunit}^  to  make 
an  examination.  The  presumption  of  knowledge  is  con- 
clusive that  he  has  full  notice  of  any  interest,  legal  or  equi- 
table, which  is  conveyed,  incumbered  or  in  any  manner 
affected  by  the  recorded  instrument.'^ 

212;  Pomroy  v.  Stevens,  11  Mete.  (Mass.),  244;  Houghton  v.  Bartholo- 
mew, 10  Mete.  (Mass.),  138;  Dole  v.  ThurloAv,  12  Mete.  (Mass.),  157;  Mar- 
shall V.  Fisk,  6  Mass.,  24;  Stetson  r.  Gulliver,  2  Cusli.,  494;  Bayley  v. 
Bailey,  5  Gray,  505;  La-vvi-ence  r.  Tucker,  7  Me.,  195:  Rackleff  v.  Nor- 
ton, 19  Me.,  274;  Merrill  v.  Ireland,  40  jMe.,  5G9;  Goodman  v.  Cloudman, 
43  Me.,  577.  See,  also,  Nice's  Appeal,  54  Pa.  St.,  200;  Adams'  Appeal,  1 
Pa.  St.,  447. 

1  Smith  V.  Branch  Bank,  21  Ala.,  125;  Daniels  v.  Sorrells,  9  Ala.,  436; 
Andrews  v.  Burns,  11  Ala.,  691;  Oliio,  etc.,  Co.  v.  Ledyard,  8  Ala.,  866. 

^DosweU  V.  Buchanan,  3  Leigh,  365;  Walker  v.  Gilbert,  1  Freem.  Ch., 
75;  Ludlow  v.  Van  Ness,  8  Bosw.,  178;  De  Ruyter  v.  Trustees,  etc.,  2 
Barb.  Ch.,  556;  Berson  v.  Neman,  63  Cal.,  550. 

3 Cook  V.  Ti-avis,  20  N.  Y.,  400;  Rounds  v.  McChesney,  7  Cow.,  360; 
Wood  V.  Chapin,  13  N.  Y.,  509;  Taylor  v.  Thomas,  5  N.  J.  Eq.,  331; 
Routhv.  Spencer,  38  Ind.,  393;  Harang  r.  Plattsmier,  21  La.  An.,  426; 
Hunt  V.  Johnson,  19  N.  Y.,  279;  Armijo  v.  New  Mexico,  etc.,  Co.,  5 
West  Coast  Rep.,  483;  Cashing  v.  Ayer,  25  Me.,  383;  Mason  v.  Martin,  4 
Md.,  124;  Vaughan  v.  Greer,  38  Tex.,  530;  Mayo  v.  Cait\vi-ight,  30  Ark., 
407;'  Randolph  v.  N.  J.  West  L.  R.  R.  Co.,  28  N.  J.  Eq.,  49;  Woodworth 
V.  Guzman,  1  Cal.,  203;  Call  v.  Hastings,  3  Cal.,  179;  Demis  v.  Burrett, 
6  Cal.,  670;  Ciiamberlain  v.  Bell,  7  Cal.,  292;  Bu-d  v.  Dennis,  7  Cal.,  297; 
Hunter  v.  Watson,  12  Cal.,  363;  McCabo  v.  Grey,  20  Cal.,  509;  Grant  v. 
Bissett,  1  Caines'  Cas.,  113;  Jackson  v.  Van  Valkenburgh,  8  Cow.,  260; 


GENERAL   SCOPE   AND   OPEEATION   OF   STATUTE.  7d 

§  98.  To  Affect  Purchasers  Must  Ibe  Properly  of  Rec- 
ord.—  But  this  rule,  though  applicable  to  aU  cases,  is  not 
applicable  in  the  same  manner,  for  the  reason  that  the  stat- 
utes are  far  from  uniform  in  their  provisions  as  to  what  is 
essential,  in  order  to  render  an  instrument  properly  record- 
able. If  not  recordable  under  the  law,  it  could  not  be 
treated  as  properly  recorded.^  Many  of  them  also  differ 
"widely  from  each  other  in  regard  to  the  time  from  which 
the  record  operates  as  notice. 

§99.  Prereciuisites  to  Eegistratiou. —  In  a  majority 
of  the  states,  the  instrument  is  entitled  to  registration  when 
it  is  properly  executed  by  the  party  to  be  bound  by  its 
terms,  and  acknowledged  before  an  officer  authorised  to 
take  acknowledgments.  Subscribing  witnesses  are  dis- 
pensed with  except  as  a  substitute  for  the  acknowledgment 
before  the  officer.  But  in  the  states  of  Connecticut,  Dela- 
ware, Florida,  Georgia,  Louisiana,  Maryland,  Michigan, 
Minnesota,  ISTew  Hampshire,  Ohio,  South  Carolina,  Texas, 
Vermont  and  Wisconsm,  the  execution  is  required  to  be  at- 
tested by  either  one  or  two  subscribing  witnesses.^  In  the 
state  of  Louisiana  the  attestmg  witnesses  are  required  to 
be  males,  and,  where  the  party  is  blind,  three  witnesses  are 
required.^ 

§  1 00.  Subscrilbing  Witnesses.—  The  provisions  in  re- 
gard to  subscribmg  witnesses  are  variously  modified  in  the 
different  states.  In  some  of  them  the  rule  is  quite  peremp- 
tory and  governs  all  conveyances  of  real  estate,  while  in 
others  it  depends  upon  where  the  instrument  is  executed  — 
whether  within  or  without  the  limits  of  the  state,  the  char- 
Jackson  V.  Given,  8  Jolins.,  137;  Webster  v.  Van  Steenhurgh,  46  Barb., 
211;  Holbrook  v.  Dickenson,  56  111.,  497;  Hogden  v.  Guttery,  58  lU., 
431 ;  Hai-rington  v.  AUen,  48  Miss.,  493 ;  Peychai-d  v.  Citizens'  B'k,  21  La. 
An.,  263;  Gower  v.  Doheney,  33  Iowa,  36;  English  v.  Waples,  13  Iowa, 
570;  Stewart  v.  Huff,  19  Iowa,  557;  Haynes  v.  Seachrest,  13  Iowa,  455; 
Bostwick  r.  Powers,  12  Iowa,  456 ;  Scales  v.  Wilsey,  11  Iowa,  261. 

1  See  infra,  §  119  et  seq. 

2  See  statutes  of  states  mentioned. 

3  Civil  Code  La.,  art.  2231. 


74  NOTICE   BY    KEGISTRATIOX    OF   INSTRUMENTS. 

acter  of  the  instrument,  and  other  cii'cumstances.  In  some 
of  them,  too,  the  consequences  of  a  faihire  to  conform  to 
the  law  Avitli  strictness,  in  the  matter  of  attestation,  are 
more  disastrous  than  in  others,  esijccially  with  reference  to 
the  effect  upon  their  registration.' 

§  101.  When  Instrument  to  be  Filed. —  In  general,  the 
record  operates  as  notice  from  the  date  of  tiling  the  instru- 
ment for  record,  or  from  the  date  of  its  registration,  or 
other  formality  deemed  sufficient  to  bring  the  knowledge 
of  its  execution  and  delivery  within  the  reach  of  any  one 
who  has  an  interest  in  making  inquiry.  But  in  several  of 
the  states  the  statutes  prescribe  certain  periods  of  time 
within  which  the  instrument  shall  be  deposited  with  the 
designated  officer  for  record.  These  periods  vary  in  the 
different  states,  as  follows:  Li  Alahama,  three  months; 
Delaware,  one  year;  District  of  Cohuuhia,  six  months; 
Florida,  six  months;  Georgia,  one  year;  Indiana,  forty- 
five  days ;  Kentucky,  sixty  days  when  executed  and  ac- 
knowledged within  the  state,  and  four  months  in  cases  of 
non-resident  grantors ;  Maryland,  ^xy.m.o^W^s,;  New  Jersey, 
fifteen  days ;  Ohio,  six  months ;  Oregon,  five  da3^s ;  Penn- 
sylvania, when  Avithin  the  state,  six  months;  Avhen  the  deed 
is  executed  without  the  state,  one  year;  South  Carolina, 
thirty  days ;  Virginia,  within  sixty  days  after  delivery  of 
the  instrument.- 

§  102.  Consequence  of  Delay  in  Filing. —  These  pro- 
visions are  not  ordinarily  construed  as  fixing  periods  of 
limitation,  but  rather  as  giving  the  grantee  so  much  time, 

1  See  cases  cited  infra,  %%  137,  225. 

2  See  Reasoner  v.  Edmonson,  5  Ind.,  393;  Bii-d  v.  Wilkinson,  4  Leigh, 
266;  Beverly  n  Ellis,  1  Riind.,  102;  McClure  v.  Thistle,  2  Gratt.,  182; 
Glazebrook  v.  Eagland,  8  Gratt.,  344;  Beck  v.  De  Baptists,  4  Leigh,  349; 
Lane  v.  Mason,  5  Leigh,  520;  Williams  v.  Beard,  1  S.  C,  309;  Steel  v. 
Mansell,  6  Rich.,  437;  Bank  of  State  v.  S.  C.  Man,  Co.,  3  Strobh.,  190; 
Tact  V.  Crawford,  1  McCord,  265;  Boyce  v.  Sliiver,  3  S.  C,  515;  Massey 
V.  Thompson,  2  Nott  &  McC,  105;  ]McFall  v.  Shen-ard,  Harper,  295; 
Dawsou  V.  Dawson,  Rice,  Eq.,  243;  Byles  v.  Tome,  39  Md.,  461 ;  Building 
Ass'n  V.  Wilson,  41  Md.,  514;  Hoopes  v.  Knell,  31  Md.,  550. 


GENEKAL    SCOrE   AND   OPEPtATION    OF    STATUTE.  75 

as  days  of  grace,  within  wliich  tlieir  instruments  may  be 
registered,  witliout  incurring  the  danger  of  being  cut  out 
by  conveyances  from  the  same  grantor  dm*ing  the  interme- 
diate time.^ 

§  103.  Exceptional  Legislation. —  Exceptional  acts  of 
legislative  bodies  of  the  states  may  provide  for  the  filing 
of  such  instruments  in  a  manner  to  give  pm'chasers  the 
substantial  benefits  of  registration  without  affecting  them 
with  constructive  notice ;  as  the  law  enacted  by  the  legis- 
lation of  the  state  of  Kew  York,  January  8,  1Y94.  The 
object  of  this  act  was  to  settle  conflicting  claims  to  bounty 
lands  in  that  state.  It  provided  that  all  deeds  and  convey- 
ances theretofore  executed  of  or  concerning  such  lands,  or 
whereby  they  might  be  affected  at  law  or  in  equity,  should, 
on  or  before  a  day  named,  be  deposited  with  the  clerk  of 
the  city  of  Albany,  and  all  such,  except  mortgages  duly 
registered,  not  so  deposited  should  be  adjudged  fraudulent 
and  void  as  against  subsequent  purchasers  or  mortgagees 
for  a  valuable  consideration.  It  was  made  the  duty  of  the 
clerk  to  keep  these  instruments  arranged  in  alphabetical 
order,  "  to  the  end  that  persons  inclining  to  have  recourse 
thereto  may  inspect  the  same,  paying  the  usual  fees  for 
search  and  inspection."  A  subsequent  portion  of  the  same 
act  provided  for  the  registry  of  deeds  thereafter  executed ; 
but  it  was  held  that  compliance  with  the  fu-st  provision  of 
the  act  would  not  charge  subsequent  purchasers  with  con- 
structive notice  of  the  instruments  deposited  with  the 
clerk.- 

§  104.  English  and  Irish  Registry  Acts. —  Under  some 
of  the  English  and  Irish  registry  acts  it  has  been  decided 
that  the  registry  of  an  instrument  does  not  itself  operate 

1  Infra,  §§  235,  268. 

2  Wendell  v.  Wadsworth,  20  Jolins.,  638;  Grimstone  v.  Carter,  3  Paige, 
421 ;  Doswell  v.  Buchanaxi,  3  Leigh,  365 ;  Goveneur  v.  Lynch,  2  Paige, 
300;  De  Reuyter  v.  Trustees,  etc.,  2  Barb.  Ch.,  556;  Ludlow  v.  Van 
Ness,  8  Bosw.,  178;  Swigert  v.  Bank,  etc.,  17  B.  Mon.,  268;  Corn  v. 
Sims,  3  Mete.  (Ky.),  391;  AValker  v.  Gilbert,  1  Freem.  Ch.,  75;  Kelly  r. 
Mills,  41  Miss.,  267;  Jaques  v.  Weeks,  7  Watts,  261. 


TG  NOTICE   BY    KEGISTKATION    OF   INSTRUMENTS. 

as  constructive  notice  to  subsequent  purchasers.^  But 
although  the  Ii'ish  acts  do  not  in  express  terms  declare  that 
the  record  of  conveyances  shall  be  notice  to  subsequent 
purchiisers,  this  effect  is  given  to  a  compliance  with  the 
statute,  for  the  reason  that  the  first  one  of  two  purchasers 
of  the  same  property,  who  records  his  conveyance,  will  have 
the  prior  right,  although  they  each  purchase  from  the  same 
t«Tantor.  And  the  statute  is  held  to  apply  to  all  instruments 
affecting  tlie  title  to  real  estate.- 

§  105.  Equitable  Mortgage.— Where  a  mortgage  had 
been  duly  registered,  and  S.  subsequently  received  the  title 
deeds  on  de^Ktsit  as  security  for  a  debt  owing  by  the  mort- 
gagor without  actual  notice  of  the  ])rior  registered  mortgage, 
it  was  held  that  the  possession  of  such  title  deeds  was  avail- 
able in  his  hands  as  an  equitable  mortgage  upon  the 
premises,  notwithstanding  the  formal  registry  of  the  prior 
mortgage.' 

§  106.  Registry  of  Marriage  Settlement.  —  So.  also, 
where  the  law  provided  for  the  registry  of  marriage  settle- 
ments, it  was  held,  in  the  case  of  Hodgson  v.  Dean,*  that  a 
subsequent  purchaser  of  the  land  included  in  such  settle- 
ment could  only  be  affected  by  actual  notice.  It  was  de- 
cided that  the  defendant  was  not  bound  to  search  the 
register,  and  therefore  could  not  be  constructively  notified 
of  its  contents. 

§  107.  Irish  Act. —  The  Irish  registry  act,  under  which 
the  case  of  Bushell  v.  Bushell*  was  decided,  after  providing 

1  Hodgson  V.  Dean,  2  Sim.  &  Stu.,  227 ;  Underwood  v.  Lord  CourtOAvn, 
2  Scho<ales  &  Lefroy,  40;  Bushell  v.  BusheU,  1  id.,  90,  103;  Morecock  v. 
Dickens,  Ambl.,  678;  Ford  v.  Wliite,  16  Beav.,  120. 

-La touch  V.  Lord  Dunsany,  1  Sch.  &  Lef.,  159;  Drew  v.  Lord  Norbury, 
;5  Jones  &  L.,  267;  Thompson  v.  Simpson,  1  Dm.  &  War.,  459;  In  re 
Di-iscoU,  1  L  R.  Eq.,  285;  MUl  v.  Hill,  12  Jones  «&  L.,  107;  3  H.  L.  Cas., 
828;  Corbett  v.  Cantillon,  5  Ir.  Ch.  R.,  126;  Hunter  u.  Kennedy,  1  Ir. 
Ch.  R.,  148. 

s  Wiseman  v.  Westland,  1  Young  &  Jervis,  117. 

<SuiJra,  §104. 

»lSch.  &  Lef.,  90. 


GENEEAL    SCOPE   AND   OPEKATION   OF   STATUTE.  li 

for  the  registry  of  deeds  and  conveyances,  declared  "  that 
every  such  deed  or  conveyance,  a  memorial  whereof-  shall 
be  duly  registered  according  to  the  rules  and  directions 
in  this  act  prescribed,  shall  be  deemed  and  taken  as  good 
and  effectual,  both  in  law  and  equity,  according  to  the 
priority  of  time  of  registering  such  memorial,  for  and  con- 
cerning the  honors,  manors,  etc,  in  such  deed  or  convey- 
ance mentioned  or  contained,  according  to  the  right,  title 
and  interest  of  the  person  so  conveying,  etc.,  against  all 
and  every  other  deed,  conveyance  or  disposition  of  the 
honors,  etc.,  or  any  part  thereof,  comprised  or  contained  in 
any  such  memorial  as  aforesaid."  Still  this  was  not  deemed 
sufficient  to  constitute  such  registry  constructive  notice  to 
a  subsequent  pmxhaser  of  the  property  included  in  the 
memorial,  and  he  would  not  be  bound  except  by  actual 
notice. 

§  108.  Registered  Mortgage  and  Unregistered  Will. — 
A  more  recent  case  arising  under  the  registry  act  for  the 
East  Eiding  of  Yorkshire  ^  seems  to  present  a  view  of  the 
law  somewhat  more  favorable  to  the  tenant  whose  evidence 
of  title  is  registered,  than  is  accorded  to  him  in  the  earher 
Enghsh  cases  cited.  It  is  decided  that  a  mortgagee  whose 
mortgage  has  been  duly  registered  shall  prevail  against  a 
devisee  in  an  unregistered  will  which  was  discovered  sub- 
sequent to  the  registration  of  the  mortgage  given  by  the 
heir,  and  after  the  time  within  which  the  registry  act  re- 
quired wdlls  to  be  registered  in  order  to  be  valid  against 
conveyances  from  the  heir.  The  statute  also  provides  that 
where  there  is  an  impediment  to  the  registration  of  the 
will  within  the  time,  that  the  registration  of  a  memorial  of 
such  impediment  will  preserve  the  rights  of  devisees,  as 
though  the  will  itself  had  been  registered,  until  such  time 
as  the  impediment  is  removed.  It  was  held  in  the  case 
cited  that  the  failure  to  discover  the  wiU  was  such  an  im- 
pediment as  was  contemplated  by  the  act,  and  because  the 

iChadwick  v.  Tiimer,  1  Ch.  Ap.  Cos.,  310. 


7b  NOTICE   BY    KEGISTKATION    OT    INSTRUMENTS. 

devisees  who  were  ignorant  of  their  interests  in  the  prem- 
ises did  not  deposit  for  registration  a  memorial  of  the  im- 
pediment to  tlie  registration  of  the  subsequently  discovered 
will,  that  instrument  was  void  as  against  the  subsequent 
mortgagee  without  notice.' 

^  101).  Registered  Legal  Jlortgage  and  Unregistered 
Equitable  Mortgage. —  So  under  the  registry  act  for  Ire- 
land in  a  recent  case,-  where  the  owner  of  an  estate  had 
created  an  unregistered  equitable  mortgage  upon  his  estate 
by  the  deposit  of  the  title  deeds,  such  equitable  mortgage 
was  postponed  to  a  subsequent  registered  legal  mortgage. 
And  it  was  further  held  that  such  legal  mortgage  could  not 
be  successfully  assailed  upon  the  ground  that  the  solicitor 
employed  to  draAV  the  same  accepted  a  frivolous  excuse  for 
tlie  absence  of  the  title  deeds,  and  drew  the  mortgage  from 
memoranda  of  tlie  contents  of  the  deeds  furnished  by  the 
mortgagor.  It  was  held  to  be  inconsistent  with  the  policy 
of  the  Irish  registry  law  to  impose  on  a  mortgagee  or  pur- 
chaser the  duty  of  inquiry,  with  a  view  to  the  discovery  of 
previous  unregistered  interests. 

§110.  Memorandum  of  Further  Charge. —  So,  also, 
where  a  mortgage  was  given  on  lands  in  Yorkshire  and  was 
duly  registered  under  the  act,^  and  a  subsequent  memoran- 
dum of  "  further  charge  "  on  the  same  property  in  favor  of 
the  mortgagee  for  additional  advances  was  made,  although 
no  amount  was  mentioned  in  the  mortgage,  the  memoran- 
dum was  deemed  a  proper  instrument  for  registry,  and  not 
being  registered  Avas  postponed  to  a  subsequent  registered 
mortgage  in  favor  of  a  mortgagee  without  notice  of  the 
further  charge.* 

§  11 1.  Agreement  to  Mortgage. —  An  unregistered  agree- 
ment to  give  a  mortgage  on  lands  in  a  register  county  was 

'  See  Wyatt  v.  Barwell,  19  Ves.,  435. 

2  Agra.  Bank  v.  Barry,  L.  R.,  7  H.  L.,  135. 

3  2  and  3  Anne,  ch.  4. 

^Credland  v.  Potter,  18  Eq.  Cas.,  350;  S.  C,  aflarmed,  10  Ch.  Ap. 
Cas.,  8. 


GE2?EEAL    SCOPE   AND    0PERATI02T   OF    STATUTE.  79 

held,  pursuant  to  the  registry  act/  to  be  a  proper  subject  for 
registration,  and  was  accordingly  postponed  to  a  subsequent 
registered  mortgage,  taken  without  notice  of  the  unreg- 
istered agreement.^ 

§112.  Acknowledgment. —  The  recording  acts  of  the 
states  of  this  Union  almost  uniformly  require  instruments 
offered  for  record  to  be  duly  acknowledged  before  an  officer 
authorised  by  law  to  take  acknowledgments.  And  though 
the  officers  designated  by  law  to  receive  such  instruments 
for  record  have  no  judicial  authority  to  determine  whether 
they  are  legally  entitled  to  registry,  and  consequently  re- 
ceive and  file  such  as  are  offered,  regardless  of  legal  defects 
in  their  execution  or  acknowledgment,  yet  a  faiku-e  to  com- 
ply with  these  formal  prerequisites  on  the  part  of  a  grantee 
generally  has  the  effect  to  invalidate  the  record  as  con- 
structive notice  to  subsequent  purchasers.*  It  is  not  suffi- 
cient that  the  genuineness  of  the  signature,  or  even  the 
fact  that  the  execution  was  properly  acknowledged,  can  be 
estabhshed  by  evidence.  All  this  must  appear  in  the  official 
certificate  attached  to  the  instrument,  and  be  spread  upon 
the  records,  in  order  that  the  record  shall  operate  as  con- 
structive notice. 

1  5  Anne,  ch.  18. 

-In  re  Wright's  Mortgage  Tn^st,  16  Eq.  Cas.,  41. 

3  Herndon  v.  Kimball,  7  Ga.,  432 ;  Graves  v.  Graves,  6  Gray,  391 ;  Selk- 
ing  V.  Hebel,  1  Mo.  App.,  340;  Brown  v.  Lunt,  37  Me.,  423;  De  Witt  v. 
Moiilton,  17  Me.,  418;  Stevens  v.  Morse,  47  N.  H.,  532;  Isham  v.  Ben- 
nington Iron  Co.,  19  Vt.,  230;  Blood  v.  Blood,  23  Pick.,  80;  Sumner  v. 
Rhodes,  14  Comi.,  135;  Carter  v.  Champion,  8  Conn.,  548;  Green  r'. 
Drinker,  7  W.  &  S.,  440 ;  Heistner  v.  Fortner,  2  Binn.,  40 ;  Parkist  v.  Alex- 
ander, 1  Johns.  Cli.,  394;  Johns  v.  Reardon,  3  Md.  Cli.,  57;  Cockey  v. 
Milne,  16  Md.,  200;  Thomas  v.  Grand  Gulf  B'k,  9  Sm.  &  M.,  201;  Work 
V.  Hai-per,  24  Mss.,  517;  Sti-ong  v.  Smith,  3  McLean,  362;  Graham  v. 
Samuel,  1  Dana,  166;  White  v.  Deimian,  1  Ohio  St.,  110;  Reynolds  v. 
Kingsbury,  15  Iowa,  238 ;  Brinton  v.  Seevers,  12  Iowa,  389, 


80  NOTICE   BY   KEGISTKATION   OF   IXSTKUMENTS. 


II.  Kecordable  Instruments. 

§  113.  What  Instruments  Should  be  Recorded. 

114.  Reservation  of  Right  of  Way. 

115.  Deed  of  Assignment. 

116.  Assignment  of  Lease. 

117.  Assignment  of  Mortgages. 

118.  Consideration. 

119.  Instruments  Not  Recordable. 

120.  Assignment  for  Benefit  of  Creditors. 

121.  Certificate  of  Emancipation. 

122.  Executory  Contract.  i 

123.  Same. 

§113.  V/hat  Instruments  Should  be  Recorded.— In 

construing  some  of  the  registry  acts  of  the  states  of  the 
Union,  it  has  been  held  that  only  instruments  by  which 
the  legal  title  to  the  premises  was  conveyed  were  entitled 
to  registration.^  But  the  prevailing  rule  now  is  that  any 
instrument  by  which  an  equitable  interest  in  the  property 
is  affected,  or  a  right  arising  out  of  the  property  is  granted 
or  reserved,  should  be  recorded,^  and,  if  executed  with  all 
the  formalities  prescribed  by  law,  the  record  ^vill  be  con- 
structive notice  to  subsequent  purchasers  or  incumbrancers 
to  the  same  extent  as  the  record  of  a  conveyance  of  the 
legal  title.' 

1  Halstead  v.  Bank  of  Kentucky,  4  J.  J.  Marsh.,  554. 

2  Notices  of  various  kinds  are  required  to  be  filed  for  record  in  order 
to  establish  liens  upon  real  estate.  It  is  held  that  a  substantial  compli- 
ance with  the  statute  will  create  a  mechanic's  hen.  Hobbs  v.  Spiegle- 
berg,  5  West  Coast  Rep.,  327. 

sParkist  v.  Alexander,  1  Johns.  Ch.,  394;  U.  S.  Ins.  Co.  v.  Shriver, 
3  Md.  Ch.,  381;  Alderson  v.  Ames,  6  Md.,  52;  Russel's  Appeal,  15  Perm. 
St.,  319;  Bellas  v.  McCarty,  10  Watts,  13;  Digman  v.  McCollum,  47  Mo., 
372 ;  Ray  v.  Bush,  1  Root,  81 ;  St.  Andrews  v.  Lockwood,  2  Root,  239 ; 
Welsh  V.  Gould,  2  Root,  287 ;  Hall's  Heu-s  v.  Hall,  2  Root,  383 ;  Alexander 
V.  Webster,  G  Md.,  359;  Gen.  Ins.  Co.  v.  U.  S.  Ins.  Co.,  10  Md.,  517;  Beers 
V.  Hawley,  2  Conn.,  467;  Wheaton  v.  Dyer,  15  Conn.,  307;  Hinman  v. 
Huuuan,  4  Conn.,  575;  Hine  v.  Robbins,  8  Conn.,  342;  Dickenson  v. 
Glenny,  27  Conn.,  104;  Hunt  v.  Johnson,  19  N.  Y.,  279;  Crane  v.  Turner, 
7  Hun,  357;  67  N.  Y.,  437;  Patten  v.  Moore,  32  N.  H.,  382;  Griswold  v. 
Smith,  10  Vt.,  452;  Siter  v.  McClanachan,  2  Gratt.,  280;  Doyle  v.  Teas, 


KECOEDABLE    INSTEUMENTS.  81 

§  1 1 4.  Resei'Tation  of  Right  of  Way. —  So  where  a  right 
of  way  was,  by  agreement,  reserved  out  of  land  convej^ed  by 
a  deed  in  which  no  mention  of  the  reservation  was  made,  it 
was  held  that  an  innocent  purchaser,  for  a  valuable  consider- 
ation, from  the  grantee  was  not  charged  with  notice  of  sucli 
reservation,  because  the  same  had  not  been  reduced  to  writ- 
ing and  filed  for  record  as  was  required  of  instruments 
affecting  the  title  to  the  land  itself.^  The  same  rule  would 
hold  good  of  other  easements,  either  granted  or  reserved. 

§  1 1 5.  Deed  of  Assignment. —  It  has  also  been  held  that 
a  deed  of  assignment  in  trust  for  the  benefit  of  creditors 
may  be  recorded.  And,  in  the  absence  of  fraud,  such  rec- 
ord would  be  sufficient  notice  to  the  creditors  affected  by 
the  conveyance.- 

§  1 1 6.  Assignment  of  Lease. —  So  where  a  lease  of  real 
estate  is  transferred  l)y  a  separate  instrument,  such  in- 
strument, being  a  transfer  of  an  interest  in  land,  is  properly 
recordable ;  and  when  the  statute  is  complied  Avith  in  respect 
to  the  acknowledgment  and  other  prerequisites,  and  the 
description  is  sufficiently  certain  to  identify  the  premises  as 
those  contained  in  the  lease,  the  record  will  operate  as 
notice  to  subsequent  purchasers.' 

§  117.  Assignment  of  Mortgage. —  And  where  the  stat- 
ute declared  that  assignments  of  mortgages  "  may  be  re- 
corded," without  special  provision  for  the  record  of  such 
assignments  operating  as  notice,  although  the  language  was 
mandatory  as  to  such  records  being  received  in  evidence,  it 
was  decided  that  such  records  would  be  notice  to  subsequent 
pm'chasers  or  assignees,  the  same  as  though  the  provisions 
of  the  statute  had  been  imperative  in  requiring  the  registry 
of  assignments.^ 

5  m.,  203;  Wilder  v.  Brooks,  10  Minn.,  50;  Kiser  v,  Heuston,  38  HI.,  252; 
Bank  of  Greensboro  v.  Clapp,  76  N.  C,  483;  Schuttr.  Large,  6  Barb.,  373. 

iBusli  V,  Golden,  17  Conn.,  594. 

•^  Farquharson  y.  Eichelberger,  15  Md.,  63. 

SMartindale  v.  Price,  14  Ind.,  115. 

<  Pepper's  Appeal,  77  Pa.  St.,  373;  Phillips  v.  Bank  of  Lewistown,  18 
Pa.  St.,  394. 
6 


S2  NOTICi:    IJY    KEGISTRATION    OF   INSTRUMENTS. 

§  118.  Consideration. —  The  fact  that  such  a  deed  is 
without  consideration,  or  has  only  such  consideration  as  at 
common  law  is  called  good  as  distinguished  from  vahtalle, 
d(;es  not  disentitle  it  to  registry ;  and  being  recorded  after 
all  the  requisite  formalities  have  been  complied  with,  the 
record  operates  as  notice,  as  though  the  conveyance  were 
for  a  valuable  consideration.^  Of  deeds  of  this  class,  those 
from  husband  to  wife  are  instances,  and  the  record  of  such 
deeds  has  been  held  to  stand  upon  the  same  footing  as  to 
notice  as  the  record  of  any  other  conveyance.- 

§  1 1 9.  Instruments  Not  Recordable. —  JBut  an  instrument 
which  is  not  required  to  be  recorded,  nor  even  mentioned  in 
the  statutes  among  those  which  may  be  recorded,  would 
not  be  regarded  as  one  contemplated  b}'  the  legislature  as  a 
recordable  instrument;  consequently,  should  it  be  copied 
upon  the  records,  such  copy  would  not  amount  to  construct- 
ive notice  to  any  one.'' 

§  120.  Assignment  for  Benefit  of  Creditors. —  So  where 
a  deed  of  assignment  for  the  benefit  of  creditors  was  not 
recpiired  by  law  to  be  recorded,  the  record  of  such  deed  Avas 
held  not  to  be  notice  to  those  who  might  purchase  in  igno- 
rance thereof.* 

§  121.  Certificate  of  Emancipation. —  So,  also,  was  it 
held  that  a  certificate  of  emancipation  was  an  instrument 

1  Mayor  v.  Williams,  6  Md.,  235;  Williams  v.  Banks,  11  id.,  198;  Cook's 
lessee  V.  Kell,  13  Md.,  469. 

-Wilder  v.  Brooks,  10  I\Iinn.,  50;  Digman  v.  McCollum,  47  Mo.,  372. 
But  a  subsequent  convej'ance,  to  take  advantage  of  a  prior  unregistered 
insti-ument,  must  be  supported  by  a  consideration.  Merriman  v.  Hyde, 
ONeb.,  120;  infra,  §226. 

3  James  v.  Morey,  2  Cow.,  246;  Villard  v.  Robert,  1  Sti-obh.  Eq.,  393; 
Moreau  v.  Detcliemendy,  18  Mo.,  522;  Parker?'.  Hill,  8  Mete,  447;  Jones 
V.  Roberts,  65  Me.,  273;  Parret  v.  Shaubhut,  5  Minn.,  323;  Washburn  v. 
Burnham,  63  N.  Y.,  301;  Grimstone  v.  Carter,  3  Paige,  421;  Betser  v. 
Rankin,  77  111.,  289;  Pitcher  v.  BaiTOws,  17  Pick.,  361 ;  Boggs  v.  Vamer, 
(•)  Watts  &  S.,  469;  Mott  v.  Clark,  9  Pa.  St.,  399;  Graves  v.  Graves,  6 
Gray,  391 ;  Bossard  v.  Wliite,  9  Rich.  Eq.,  483 ;  Galpin  v.  Abbott,  6  Mich., 
17 ;  Reed  v.  Coale,  4  Ind.,  283 ;  Brown  v.  Budd,  2  Ind.,  442 ;  Lewis  v.  Baird, 
3  McLean,  56. 

*  Burnham  v.  Chandler,  15  Tex.,  441. 


EECOEDABLE   I?s"STRUMENTS.  83 

not  required  to  be  recorded  nor  entitled  to  record.^  And 
the  same  was  held  regarding  a  deed  to  a  slave,  though  it 
was  decided  that  the  recording  of  such  deed  was  sufficient 
to  rebut  the  idea  of  concealment,  and  might  be  offered  in 
evidence  as  a  circumstance  tending  to  prove  actual  notice.^ 

§  122.  Executory  Contract. —  An  executory  contract, 
except  where  its  registry  is  provided  for  by  law,  would  gain 
nothing  by  being  recorded.  Such  record  would  not  be 
notice  of  the  existence  of  such  contract  to  any  persons 
except  those  Avho  actually  saw  the  same.^ 

§  123.  Same. —  And  even  where  the  ISTew  York  statute 
made  provision  for  the  registry  of  such  contracts,*  it  was 
held  that  the  record  did  not  constructively  impart  notice  to 
any  one,  because  the  statute  providing  for  their  registry 
was  merely  to  preserve  the  evidence  of  the  contract,  and 
not  to  give  notice  of  its  existence.^ 

1  Common  wealth  v.  Rhodes,  6  B.  Mon.,  171. 

-'Bossard  v.  White,  9  Richardson's  Eq.,  483. 

SMesick  v.  Sunderland,  6  Cal.,  297. 

nR.  S.,  763,  §29. 

5  Washburn  t\  Burnham,  63  N.  Y.,  132;  Boyd  v.  Schlesinger,  59  id., 
^01.  The  original  and  not  a  copy  must  be  filed  for  record.  Ladley  v. 
Oreighton,  70  Pa.  St.,  490. 


84  KOTICE   BY    REGISTKATION   OF   IXSTRUMENTS. 


TTT.  Statdtoey  Pkekkquisites  to  Eecokding. 

§  124.  Statute  Must  be  Complied  With. 

125.  Necessity  of  Acknowledgment. 

126.  Certificate  of  Official  Character  Required, 

127.  Defective  Acknowledgments  Cured  by  Legislation. 

128.  Acknowledgment  Unnecessary. 

129.  Execution  Acknowledged  by  One  of  Two  Grantors. 

130.  Officers  Before  Wliom  Acknowledgment  Made. 

131.  Lack  of  Unifomiity  in  Designating  Officers. 

132.  Acknowledgment  of  Deed  Affecting  Land  in  Another  State. 

133.  Justices  of  the  Peace. 

134.  Acknowledging  Officer  a  Party  in  Interest. 

135.  Defects  Must  Appear  Upon  the  Face. 

136.  Officers  De  Facto. 

137.  Attesting  Witnesses. 

138.  When  Two  Required. 

139.  Witnessed  by  One,  Insufficient. 

140.  Defective  Execution  Held  luTmaterial. 

141.  Record  Inoperative  Without  Delivery. 

142.  Delivery  After  Recording, 

143.  Same  —  Effect  of  Subsequent  Delivery. 

144.  Must  be  Recorded  by  Proper  Officer. 

145.  Recorded  by  Officer  De  Facto. 
140.  Same. 

§  124.  Statute  Must  be  Complied  Witli. —  The  require- 
ments  of  the  statute,  both  in  regard  to  the  oflBcial  character 
of  the  acknowledging  officer  and  the  contents  of  his  cer- 
tificate, must  be  complied  with  in  every  substantial  particu- 
lar, or  the  record  of  the  instrument  will  be  inoperative  as 
constructive  notice.^ 

§125.  Necessity  of  Ackiiowledgment. —  In  many  in- 
stances this  construction  of  the  statute  has  seemed  to  work 
hardship  upon  those  who  had  purchased  upon  the  faith  of 
the  record  title.  But  not  only  is  the  construction  given  to 
the  statute  by  the  courts  strictly  defensible,  but  the  statu- 
tory provision  itself  is  dictated  by  the  highest  considera- 

'  Shults  V.  Moore,  1  McLean,  520;  Zeigler  v.  Shomo,  78  Penn.  St.,  357; 
Pringle  v.  Dunn,  37  Wis.,  449;  Galpin  v.  Abbott,  6  Mich.,  17;  Graves 
V.  Graves,  6  Gray,  391. 


STATUTORY   PREEEQUISITES   TO   KECOEDING.  85 

tions  of  security  to  owners  of  real  estate.  "Were  it  not  for 
this  check  upon  human  cupidity  the  records  might  be  cum- 
bered with  fraudulent  conveyances  from  supposititious  grant- 
ors, which,  while  they  failed  to  clothe  the- grantees  Avith 
even  a  shadow  of  title,  would  suffice  so  to  becloud  the  titles 
of  those  who  were  purchasers  from  the  true  owners,  as  to 
frighten  timid  purchasers  and  depreciate  the  value  of  prop- 
erty. So,  too,  is  this  wise  provision  a  wholesome  restraint 
upon  forgery.  The  commission  of  this  crime  is  rendered 
less  easy  and  safe  when,  to  make  it  effective,  it  becomes 
necessary  for  the  forger  to  take  a  public  officer  into  his  confi- 
dence.^ In  some  of  the  states,  however,  where  deeds  are 
required  to  be  acknowledged  in  order  that  they,  or  certified 
copies  thereof,  may  be  oifered  in  evidence  without  further 
proof  of  their  execution,  the  omission  of  this  formality  does 
not  affect  the  record  of  the  instrument  as  constructive  notice.^ 

§  126.  Certificate  of  Official  Character  Required. — 
Following  this  principle  of  construction  of  a  statute  requir- 
ing the  certificate  of  a  clerk  of  a  court  of  record,  where  the 
acknowledgment  was  before  a  notary  public  in  another 
state,  to  the  genuineness  of  the  notary's  seal  and  certificate, 
it  was  held  that  a  deed  acknowledged  beyond  the  limits  of 
the  state  before  a  notary  whose  official  character,  etc.,  was 
not  so  certified,  was  improperly  admitted  to  record,  and  did 
not  operate  as  constructive  notice.* 

§  127.  Defective  Acliiiowledgmeiits  Cured  hy  Legisla- 
tion.—  In  some  of  the  states,  however,  legislation  has  come 
to  the  relief  of  defectively  acknowledged  instruments.  The 
general  tenor  of  these  curative  acts  is  that  from  the  taking 

iDe  Witt  V.  Moulton,  17  Me.,  418;  Isham  v.  Bennington  Iron  Co..  19 
Vt.,  230;  Stevens  v.  Morse,  47  N.  H,,  532;  Johns  v.  Reardon,  3  Md.  Ch., 
57;  Heistner  v.  Fortner,  2  Binn.,  40;  Blood  v.  Blood,  23  Pick.,  80;  'Strong 
V.  Smith,  3  McLean,  362;  Sumner  v.  Rhodes,  14  Conn.,  135;  Work  v. 
Harper,  24  ]\Iiss.,  517;  Reynolds  v.  Kingsbury,  15  la.,  238;  Graham  v. 
Samuel,  1  Dana,  166;  Hodgson  v.  Butts,  3  Cranch,  140;  Harper  v.  Reno, 
1  Freem.  Ch.,  323;  Thomas  v.  Grand  Gulf  B'k,  9  Sm.  &  M.,  201. 

2  Infra,  §  128. 

*  Musgrove  v.  Bonser,  5  Oregon,  313. 


86  NOTICE   BY   KEGISTKATION   OF   IXSTEUMENTS. 

effect  of  the  statute  all  iustrumcuts  pre\'iously  recorded, 
defectively  acknowledged  or  attested,  or  not  acknowledged 
and  attested  at  all,  should  operate  as  constructive  notice  to 
purchasers  to  "the  same  extent  as  though  they  had  been 
properly  acknowledged.  Notwithstanding  the  apparent  re- 
trospective operation  of  statutes  of  this  kind,  they  have 
uniformly  been  approved  by  the  courts  and  sustained  as 
constitutional.' 

§  128.  Ackiiowledgnieiit  Unnecessary. —  Under  statutes 
which  may  fairly  be  regarded  as  exceptional,  the  record  of 
a  deed  has  been  held  to  operate  as  constructive  notice  to 
subsequent  purchasers  though  defectively  acknowledged. - 
And  where  the  statute  provided  that  no  instrument  affect- 
ing real  estate  should  be  of  any  vahdity  against  subsequent 
purchasers  for  a  valuable  consideration  without  notice,  un- 
less recorded,  and  that  where  a  deed  had  been  acknowledged 
and  certilied  in  the  manner  prescribed  by  law,  the  original 
might  be  read  in  evidence  without  further  proof  of  the  ex- 
ecution,' it  was  held  that  as  the  statute  was  silent  as  to  the 
matter  of  acknowledgment  as  a  prerequisite  to  tbt>  registry 
of  the  deed,  and  only  required  this  formality  as  a  condition 
to  its  being  read  in  evidence  without  proof  of  execution,  a 
deed  in  fact  registered,  even  though  it  were  not  acknowl- 
edged, woidd  be  constructive  notice  to  subsequent  grantees 
who  purchased  for  value,  and  without  actual  notice.* 

§  129.  Execntion  Acknowledged  by  One  of  Two  Grant- 
ors.—  And  even  in  a  case  where  the  statute  required  the 
instrument  to  be  acknoAvledged  to  render  its  registry  effect- 
ive as  notice  to  subsequent  purchasers,  it  was  held  that  an 

■  1  Watson  V.  Mercer,  8  Peters,  88 ;  Tate  v.  Stooltzfoods,  16  Serg.  & 
Rawle,  35;  "Wallace  v.  Moody,  26  Cal.,  387;  Logan  v.  Williams,  76  111., 
175;  Gatewood  v.  Hart,  58  Mo.,  261;  Allen  v.  Moss,  27  Mo.,  354;  Barnet 
V.  Barnet,  15  Serg.  &  R.,  72;  Hughes  v.  Cannon,  2  Humph.,  589;  Reed 
V.  Kemp,  16  111.,  445;  Brown  v.  Simpson,  4  Kans.,  76. 

2  Gillespie  v.  Reed,  3  McLean,  377 ;  Reed  v.  Kemp,  16  111.,  445.  (Under 
Stat.  July  21,  1837.) 

3  Comp.  Laws  Kansas,  p.  355. 

*  Simpson  v.  Mundee,  3  Kan.,  172;  Brown  v.  Simpson,  4  Kan,,  76. 


6TATUT0EY   PEEEEQUISITES   TO   KECOKDING.  ST 

acknowledgment  by  one  of  two  grantors  met  all  the  require- 
ments of  the  statute,  so  as  to  render  the  record  of  the  deed 
not  only  constructive  notice  of  the  conveyance  of  the  interest 
of  the  grantor  who  acknowledged  the  deed,  but  also  the  in- 
terest of  the  one  who  failed  to  acknowledge.^  The  reasoning 
in  this  case  was  that  the  object  of  the  statute  being  to  give 
publicity  to  conveyances,  that  object  was  attained  whenever 
the  deed  was  placed  upon  record,  and  it  could  not  have  been 
recorded  without  authority,  because,  when  it  was  acknowl- 
edged by  one,  its  registry  was  authorized  as  to  him,  and  it 
was  quite  clear  that  his  conveyance  could  not  be  recorded 
without  recording  that  of  the  other  grantor. 

§  130.  Officers  Before  Whom  Acknowledgment  Made. — 
The  officers  empowered  to  certify  to  the  acknowledgment 
of  instruments  for  record  as  designated  by  the  recording 
acts  of  the  various  states  are  numerous  and  diverse  in  their 
characters.  But  perhaps  the  most  universally  recognized, 
as  well  as  the  most  generally  resorted  to,  are  notaries  pub- 
lic. In  addition  to  these  are  judges,  including  justices  of 
the  supreme  court  of  tlie  United  States,  and  of  the  different 
states  and  territories,  county  and  probate  judges,  and  nearly 
all  judicial  officers  of  intermediate  degree.  Another  class 
that  is  quite  generally  recognized  are  justices  of  the  peace. 
These,  as  well  as  most  other  officers  who  do  not  use  a  seal 
to  authenticate  their  official  acts,  are  less  frequently  em- 
ployed, for  the  reason  that  it  is  generally  necessar}^,  when  the 
instrument  affects  property  in  another  state,  to  fortify  their 
certification  of  the  acknowledgment  by  the  certificate  of  the 
clerk  of  a  court  of  record  that  such  officer  had  been  com- 
missioned and  qualified,  and  that  his  signature  is  genuine. 
Besides  those  already  mentioned  are  chancellors,  clerks, 
mayors,  masters  in  chancery,  court  commissioners,  prothon- 
otaries,  foreign  ministers,  consuls,  and  otlier  diplomatic 
officers,  and  commissioners  especiall}'-  appointed  for  that 
purpose  by  governors  of  different  states.  Even  surveyors, 
and  army  officers  of  the  rank  of  major,  or  of  higher  rank, 
have  been  designated  in  some  instances. 

1  Shaw  V.  Poor,  6  Pick.,  86. 


88  NOTICE   BY   KEGISTKATION   OF   INSTKUMENTS. 

§  131.  Lack  of  Uniformity  in  Designating  Officers.— 

It  may  not  be  out  of  place  to  remark  here  that  much  of  the 
apparent  hai'slmess  in  the  operation  of  the  recording  acts 
arises  from  mistake  in  selecting  the  officers  before  whom 
acknoAvledgments  are  made.  These  misfortunes  are  owing 
to  a  want  of  uniformity  in  the  statutes  of  the  different 
states.  And  it  is  no  consolation,  but  rather  an  aggravation, 
to  reflect  that  the  diversities  have  no  better  foundation  than 
local  caprice. 

§  132.  Acknowledgment  of  Deed  Alfecting  Land  in 
Another  State. —  When  the  instrument  executed  in  one 
state  affects  the  title  to  land  in  another,  the  law  of  the  state 
where  the  land  lies,  of  course,  will  govern,  and  not  that  of 
the  place  where  the  instrument  is  executed  ancl  acknow^l- 
edged.  As  the  validity  of  the  record  depends  in  no  small 
degree  upon  the  officer  Avhose  certificate  authenticates  the 
acknowledgment,  the  selection  of  the  proper  one  becomes  a 
matter  of  importance. 

§  133.  Justices  of  the  Peace. —  It  has  been  hold  under  a 
statute  limiting  the  jurisdiction  of  justices  of  the  peace  to 
taking  the  acknowledgments  of  such  instruments  as  affected 
lands  lying  within  their  own  counties,  that  where  the  ac- 
knowledgment was  taken  before  a  justice,  to  a  deed  of  land 
in  another  county,  the  record  of  such  deed  failed  to  impart 
constructive  notice.' 

§  134.  Acknowledging  Officer  a  Party  in  Interest. —  So, 
also,  when  there  is  any  circumstance  that  disqualifies  the 
officer  from  acting  in  the  particular  instance,  the  record 
will  be  vitiated.  x\s,  Avhen  on  the  face  of  the  deed  it  ap- 
peared that  the  acknowledgment  was  before  a  party  in  inter- 
est, it  was  held  to  be  improperly  recorded,  and  that  the 
record  did  not  impart  constructive  notice  to  subsequent 
purchasers.- 

§  135.  Defects  Must  Appear  Upon  the  Face. —  It  would 
be  otherwise,  however,  where  the  instrument  was  fair  upon 

1  Bishop  V.  Schnekler,  46  Mo.,  473;  Musick  v.  Barney,  49  Mo.,  458; 
Gatewood  v.  Hart,  58  Mo.,  261. 
2 Stevens  v.  Hampton,  46  Mo.,  404. 


STATUTORY   PKEEEQUISITES   TO   EECOEDIKG.  89 

its  face,  as  the  record  will  impart  notice,  notwithstanding 
hidden  defects  in  the  execution  or  acknowledgment.^ 

§  136.  Officer  De  Facto. —  But  where  the  acknowledg- 
ment is  certified*  by  an  officer  de  facto,  though  he  be  a 
usurper  of  the  office,  if  the  jurisdiction  extends  to  the  tak- 
ing of  acknowledgments,  the  instrument  will  be  properly 
recorded,  and  the  record  will  be  as  effective  as  though  it  had 
been  acknowledged  before  an  officer  de  jure?  Any  subse- 
quent proceeding  by  which  the  usurpation  of  the  office  might 
be  established  would  not  affect  the  validity  of  his  official 
acts  regularly  performed. 

§137.  Attesting  Witnesses. —  In  a  majority  of  the  states 
of  the  Union  the  certificate  of  acknowledgment  is  all  the 
authentication  required  to  admit  the  instrument  to  record. 
It  is  only  in  the  absence  of  such  certificate  that  the  execu- 
tion is  requii'ed  to  be  proved  by  attesting  witnesses,  as  a 
substitute  for  the  more  convenient  method  of  acknowledg;- 
ment  before  an  officer.  But  in  some  of  the  states,  as  we 
have  seen,*  the  attestation  of  witnesses  is  required  in  addi- 
tion to  the  formal  acknoAvledgments,  and  in  some  of  these, 
instruments  copied  upon  the  records  without  being  so  at- 
tested have  been  held  not  to  impart  constructive  notice  b}'' 
virtue  of  their  registry.* 

§  138.  WlieuTwoRequiretT.— As  where  the  execution  of 
a  deed  was  required  by  statute  to  be  attested  by  two  sub- 
scribing witnesses,  and  one  of  the  names  subscribed  thereto 
was  that  of  the  wife  of  the  party  executing  it  as  grantor, 
this  defect  was  held  to  be  of  so  substantial  a  nature  that  an 
instrument  so  witnessed  was  not  a  deed,  and  not  entitled  to 
be  recorded ;  consequently  the  record  would  not  operate  as 
constructive  notice.^ 


'  Stevens  v.  Hampton,  46  Mo.,  404. 
2 Brown  v.  Lunt,  37  Me.,  423. 

3  S«jJ»ro,  §99. 

4  Pringle  v.  Dunn,  37  Wis.,  449 ;  Parret  v.  Shaubliut,  5  Mum.,  323 ;  Gal- 
pin  V.  Abbott,  6  Mich.,  17. 

5  Carter  v.  Chami  ion,  8  Conn.,  549. 


90  NOTICE   BY   KEGISTRATION   OF   INSTKUMENTS. 

§  1 39.  Witnessed  l)y  One,  Insufficient. —  So  when  a  mort- 
gage required  by  statute  to  be  attested  by  two  ^ntnesses,  in 
addition  to  the  acknowledgment,  though  regular  in  every 
other  respect,  was  executed  in  the  presence  of,  and  attested 
by,  but  one  witness,  this  was  held  to  be  a  substantial  defect 
in  the  execution  of  the  instrument,  by  reason  of  which  it 
was  not  recordable,  and  the  unauthorized  record  thereof 
would  not  affect  subsequent  pm'chasers  or  incumbrancers.^ 

§  140.  Detective  Execution  Held  Immaterial. —  But  the 
authorities  are  not  uniform  in  exacting  strict  compliance 
with  legal  requirements  in  the  execution  of  the  instrument 
as  a  condition  precedent  to  its  admission  to  the  records. 
Where  equitable  interests  are  recognized  as  the  proper  sub- 
jects of  registration,  the  record  of  any  instrument  which 
passes  the  equity  would  be  good  constructive  notice  of  that 
interest,  and  woidd  be  as  conclusive  upon  subsequent  pur- 
chasers as  though  the  legal  title  had  passed  to  the  grantee. 
In  pursuance  of  this  doctrine,  where  a  seal  was  recognized 
as  one  of  tlie  essentials  of  a  deed  to  real  estate,  and  ac- 
knowledgment Avas  the  only  legal  formality  prescribed  for 
the  admission  to  the  public  records  of  instruments  whereby 
legal  or  equitable  titles  or  interests  in  real  estate  were 
affected,  it  was  held  that  a  deed  of  conveyance  from  which 
the  seal  was  omitted  j^assed  an  equitable  interest  to  the 
grantee,  and,  being  duly  acknowledged,  was  properly  re- 
corded, and  the  same  effect  was  to  be  given  to  the  record 
of  this  unsealed  deed  as  it  woidd  have  been  entitled  to  had 
it  been  sealed.  It  was  constructive  notice  to  aU  subsequent 
purchascrs." 

§  141.  Record  Inoperative  Without  Delivery. —  xV  fur- 
ther prerequisite  to  a  vahd  registry  is  that  the  instrument 
must  be  delivered  before  recorded.  Therefore  the  deed 
should  not  be  deposited  for  record  until  after  delivery.  The 
obvious  reason  of  this  rule  is  that  untD.  delivery  the  deed  is 

1  White  V.  Denman,  1  Ohio  St.,  110. 

SMcClurg  V.  Phillips,  57  Mo.,  214;  Harrington  v.  Fortner,  58  Mo.,  468; 
Brydon  v.  Campbell,  40  Md.,  331. 


t 
STATUTORY   PKEKEQTJISITES   TO   EECOEDING.  91 

incomplete.  It  was  not  intended  that  instruments  affecting 
the  title  to  real  estate,  which  were  by  law  required  to  be 
recorded,  should  operate  as  constructive  notice  of  a  change 
of  ownership  in  the  property  which  they  were  utterly 
powerless  to  effect.  A  deed  without  dehvery  is  as  inopera- 
tive as  though  it  had  never  been  executed,  and  may  be  of 
even  less  effect  than  it  would  be  with  a  defective  execution.^ 

§  142.  Delivery  After  Recording. —  Where  a  deed  was 
executed  and  acknowledged  by  the  grantor,  who  of  his  own 
motion  filed  it  for  record,  and,  after  it  had  been  duly  copied 
upon  the  records,  delivered  it  to  the  grantee,  the  record  was 
held  not  to  impart  notice  from  the  date  of  filing,  for  the 
reason  that  until  delivered  it  was  not  a  completed  instru- 
ment, as  the  title  to  the  property  was  stQl  in  the  grantor.- 

§  143.  Same  —  EfTect  of  Subsequent  Delivery. — Where, 
however,  the  deed  is  delivered  after  it  has  been  recorded,  it 
does  not  lose  all  the  benefits  of  the  registration,  but  the 
record  will  be  notice  to  all  who  purchase  subsequent  to  the 
delivery ;  but  those  who  may  have  purchased  during  the 
time  between  the  registration  and  the  delivery  of  the  deed, 
without  notice,  and  for  value,  wiU  be  as  effectually  protected 
as  though  the  instrument  had  never  been  recorded  at  all.^ 

§  143a.  Delivery  to  the  Recorder  for  the  Grantee.— 
It  is  not,  however,  to  be  understood,  that  to  give  the  deed 
effect  it  must  be  delivered  to  the  grantee  in  person.  The 
title  will  pass  as  well  when  the  deed  is  delivered  to  an  in- 
termediate party  for  the  grantee,  as  when  it  is  placed  in 
the  hands  of  the  latter.  And  if  tliis  delivery  is  made  to 
the  recording  olficer,  not  only  that  he  may  spread  its  con- 
tents on  the  public  records,  but  that  he  may  act  for  the 
grantee  in  accepting  the  instrument ;  if  the  delivery  be  in- 
tended by  the  grantors  as  irrevocable  between  himself  and 
the  grantee,  there  is  no  reason  why  it  should  not  operate 
as  effectually  to  vest  title  in  the  pm-chaser  as  though  it  had 

» Parker  v.  Hill,  8  Mete,  447. 

2  Parker  v.  HiU,  8  Mete,  447 ;  Life  Ins.  Co.  v.  Eowand,  26  N.  J.  Eq.,  389. 

!>  Parker  v.  Hill,  8  Mete,  447;  Jones  v.  Roberts,  65  Me.,  373. 


92  NOTICE   BY   REGISTRATION    OF   INSTRUMENTS. 

been  personally  delivered.  And  if  it  has  this  effect  the 
recorcl  will  take  effect  from  the  date  of  the  deposit  of  the 
instrument  with  the  officer.*  The  fact  that  the  instrument 
was  lilod  for  record  has  been  accepted  as  -prima  facie  evi- 
dence of  delivery  ;2  but  so  far  from  its  being  regarded  as 
conclusive,  it  was  held  to  be  rebutted  b}"  evidence  that  the 
execution  and  recording  of  the  instrument  Avas  unknown  to 
the  grantee  at  the  time,  although  he  had  previously  assented 
to  the  conve3'ance.* 

§  144.  Must  be  Recorded  by  Proper  Officer.— It  would 
seem  scarcely  necessary  to  add  that,  in  order  to  render  the 
recording  effectual,  it  should  be  the  act  of  an  officer  duly 
authorized  and  empowered  to  act  in  the  premises.  The 
more  copying  an  instrument  upon  the  records  by  a  volun- 
teer who  had  not  been  previously  deputized  or  authorized  to 
perform  the  work  would  not  amount  to  constructive  notice. 

§  145.  Recorded  by  Officer  De  Facto. —  But  where  an 
officer  is  acting  under  a  government  de  facto,  though  it  be 
unlawful  and  revolutionary,  if  it  be  of  paramount  force 
within  the  district  where  the  officer  exercises  his  functions, 
his  official  acts,  not  directly  in  aid  of  the  Avar  power  of  the 
unlawful  government,  will  be  regarded  as  valid  and  binding. 

§  140.  Same. —  So  the  registry  of  a  deed  by  a  clerk  who 
continued  to  exercise  his  official  duties  in  the  state  of  Vir- 
ginia after  the  passage  of  the  ordinance  of  secession,  while 
the  county  Avas  under  control  of  the  military  poAver,  Avas 
held  valid.* 

iSee  Gould  v.  Day,  94  U.  S.,  405;  Cornall  v.  Duvall,  23  Ark.,  136; 
Mallory  r.  Stoddar,  6  Ala.,  801;  Tibbals  v.  Jacobs,  31  Conn.,  428;  Ren- 
fro  V.  Han-ison,  10  Mo.,  411;  Church  v.  Gilmore,  1  A^^'ood,  656;  Lady 
Superior  v.  McNauiara,  3  Barb.  Ch.,  375;  Marsh  v.  Austui,  1  Allen,  235; 
Bennett  r.  Waller,  23  111.,  97;  Hays  v.  Davis,  18  N.  H.,  600;  Mysoner  v. 
Fi-ench,  73  N.  C,  609;  Withers  r.  Jenkins,  6  Rich.  S.  C,  122. 

-'Himes  v.  Keighbhngher,  14  111.,  469, 

3 Union,  etc.,  Ins.  Co,  v.  Campbell,  95  111.,  267. 

*  Henning  v.  Fisher,  6  W,  Va.,  238.  See,  also,  Texa-s  v.  Wliite,  7  Wall. 
733;  Thorington  v.  Smith,  8  id.,  1 ;  Griffin  r.  Cunningham,  20  Gratt.,  81 ; 
Sherfy  v.  Argenbright,  1  Heiskell,  128 ;  Harrison  v.  Farmers'  Bank  of 
Virginia,  6  W.  Va.,  1. 


EKROES    IN   THE   EECOKD.  93 


IV.    EeEOES   in   the   E.ECOED. 

§  147.  Effect  of  Error  in  Eecord. 

148.  Errors  in  Descrijition. 

149.  Effect  of  Filing  and  Subsequent  EiTor  in  Recording. 

150.  To  Wliom  is  the  Officer  Responsible  for  Errors? 

151.  Different  Construction  of  the  Statute. 

152.  The  Notice  Unaffected  by  EiTors  in  Recording. 

153.  Partial  Omission. 

154.  Entire  Omission. 

155.  Views  of  Early  American  Authorities,  1793. 

156.  Same  — 1794. 

157.  Destruction  of  the  Records  Does  Not  Affect  Notice. 

158.  Effect  of  Error  in  Amount  Secured  by  Mortgage. 

159.  Error  in  Description. 

160.  Fraudulent  Concealment  by  Officer. 

161.  Immaterial  EiTors. 

162.  Principles  Governing  Errors  in  the  Record. 

163.  Failure  to  Record  in  Proper  Time. 

164.  The  Index. 

165.  Failure  to  Index  Does  Not  Affect  Record. 

166.  Error  in  Index  Does  Not  Affect  Record. 

167.  Failure  to  Index  Under  Iowa  Statute. 

168.  Index  Sufficient  to  Put  Upon  Inquiry. 

169.  Index  Held  Part  of  the  Record. 

170.  Grantee  Cannot  Control  the  Officer. 

171.  Mortgagee  Not  Affected  by  Officer's  Failure. 

172.  Index  No  Part  of  the  Record. 

173.  Same  —  Current  of  Authority. 

§  147.  Effect  of  Error  in  Record. —  The  record,  in  order 
to  fulfil  its  proper  function,  should  be  an  exact  copy  of  the 
words  and  figures  contained  in  the  original,  set  forth  in 
their  proper  order  of  arrangement.  The  greatest  care  is 
usually  taken,  in  recording,  to  produce  a  literal  transcript  of 
the  instrument  filed  for  record  —  even  to  the  perpetuation 
of  its  errors  and  omissions.  But  in  prosecuting  his  labors 
with  the  exact  nicety  required  to  avoid  trifling  errors,  the 
officer  occasionally  commits  errors  of  a  graver  sort,  by 
which  the  record  is  liable  to  mislead.  Errors  of  this  kind 
have  been  held  to  vitiate  the  record  and  destroy  its  effi- 


9i  NOTICE   BY   KEGISTRATION   OF   INSTEUMENT8. 

ciency  as  constructive  notice.^  ISTot  only  should  tlie  record 
be  a  faitliful  transcript  of  the  original,  but  it  is  held  that  it 
must  be  recorded  in  the  proper  book  in  order  to  operate  as 
constructive  notice.-  "Where  separate  books  are  provided 
for  absolute  conveyances,  and  are  differently  designated 
from  those  used  for  mortgages,  it  has  been  decided  that 
Avliere  a  conveyance  is  recorded  in  the  book  of  mortgages, 
or  a  mortgage  in  the  book  of  conveyances,  it  will  not  be- 
come constructive  notice  for  an}^  purpose  whatever.' 

§  148.  Errors  in  Description. —  As  where  the  statute 
rendered  the  filing  of  the  instrument  constructive  notice  to 
all  purchasers  subsequent  to  the  date  of  such  filing,  regard- 
less of  the  time  of  copying  the  instrument  upon  the  rec- 
ords, it  was  held  that,  after  the  record  was  completed, 
purchasers  without  actual  notice  of  the  contents  of  the 
original  had  only  constructive  notice  of  what  such  record 
would  disclose ;  and  there  being  an  error  in  the  description, 
by  Avhich  it  appeared  that  the  interest  conveyed  was  the 
undivided  interest,  whereas,  in  the  original  deed,  it  was  the 
individual  interest,  it  was  held  that  the  notice  was  only  of 
the  conveyance  of  the  undivided  half,  as  appeared  by  the 
records.*  So  where  the  recorder  inserted  the  name  of  the 
wrong  person  as  grantor,  the  record  was  treated  as  notice 
of  d^  convej^ance  b}''-  the  individual  whose  name  was  erro- 
neously entered  upon  the  records  as  executing  the  instru- 
ment.'* 

§  149.  Effect  of  Filing  and  Snbsequent  Error  in  Re- 
cording.—  Many  of  the  recent  authorities  seem  to  favor 
the  view  that  when  the  instruments  have  been  spread  upon 
the  records,  they  only  give  notice  of  the  contents  of  such 

'  Jennings  v.  "Wood,  20  Ohio,  261 ;  Terrel  v.  Andrew  County,  44  Mo., 
309. 

2  Van  Thorniley  v.  Peters,  26  Ohio  St.,  471. 

3 Leach's  Appeal,  44  Pa.  St.,  140;  Fisher  v.  Tunnai'd,  25  La.  An., 
179;  Succession  of  Cordeviolle  v.  Dawson,  26  La.  An.,  534;  Verges  v, 
Prejean,  24  La.  An.,  78. 

*]Miller  v.  Bradford,  12  la.,  14. 

5  Jennings  v.  Wood,  20  Ohio,  261, 


EEEOKS    IJ?"   THE    KECOED.  95 

as  are  correctly  recorded,  although  previous  to  their  being 
recorded  the  filing  for  record  is  complete  notice  of  the  con- 
tents of  the  original.  The  pui'chaser  is  protected  in  placing 
complete  reliance  upon  the  records  as  he  finds  them,  and  is 
not  bound  to  take  notice  of  errors  in  recording  of  which  he 
has  never  been  actually  informed.  This  doctrine  is  fully 
maintained  and  ably  set  forth  in  the  case  of  Terrel  v.  An- 
drew County,^  by  Judge  Wagner,  who,  in  delivering  the 
opinion  of  the  court,  sa3^s :  "  The  obligation  of  giving  the 
notice  rests  upon  the  party  holding  the  title."  If  his  duty 
is  imperfectly  performed,  the  consequences  must  fall  upon 
him  and  not  an  innocent  purchaser.  In  this  case  the  fiUng 
is  recognized  as  sufiicient  to  protect  the  grantee,  even  where 
the  deed  has  not  been  recorded.  In  examining  titles,  one 
first  searches  the  records,  and  then  examines  the  files  in 
case  he  finds  nothing  recorded.  But  if  the  record  shows  a 
conveyance  he  will  be  guided  by  that,  and  will  not  consult 
the  files  in  order  to  examine  the  original.  It  was  held  that 
the  bond  given  by  the  recorder  for  the  faithful  perform- 
ance of  his  duties  was  for  the  benefit  of  every  person  in- 
jured by  his  dereliction  of  dut}^,  and  not  merely  for  the 
benefit  of  subsequent  purchasers ;  in  this  case  for  the  one 
who  deposited  the  deeds  and  paid  for  having  them  recorded. 
According  to  the  views  of  the  learned  judge,  it  would  seem 
to  be  incumbent  upon  the  grantee  to  supervise  the  work  of 
the  ofiicer,  or  at  least  to  examine  the  record  when  com- 

1  44  Mo.,  309.  See,  also,  Lally  v.  Holland,  1  Swan  (Tenn.),  396;  Brydon 
V.  Camijbell,  40  Md.,  331;  Barnard  v.  Campau,  29  Mch.,  163;  Pi-ingle  v. 
Dunn,  37  Wis.,  449;  Van  Tliorniley  v.  Peters,  26  Ohio  St.,  471;  Calder 
V.  Chapman,  52  Pa.  St.,  359;  Colomer  v.  Morgan,  13  La.  An.,  202;  Suc- 
cession of  Cordeviolle  v.  Dawson,  26  id.,  534;  Fisher  v.  Tunnard,  25  id., 
179;  Verges  v.  Prejean,  24  id.,  78;  Grimstone  v.  Carter,  3  Paige,  421; 
Jennings  v.  Wood,  2  Ohio,  261;  Miller  v.  Bradford,  12  la.,  14;  Hughes 
V.  Dudnam,  8  Jones,  127;  Peck  v.  Mallams,  10  N.  Y.,  509;  Beekman  v. 
Frost,  18  Johns.,  544;  Young  v.  Wilson,  27  N.  Y.,  351;  S.  C,  24  Barb., 
510;  Babcock  v.  Bridges,  29  Barb.,  427;  Pettibone  v.  Griswold,  4  Conn., 
158;  Hart  v.  Chalker,  14  Conn.,  77;  Viele  v.  Judson,  82  N.  Y.,  32.  In 
some  of  the  above  cases  the  error  by  which  the  record  was  vitiated  was 
in  the  original  instrument. 


96  NOTICE   BY   KEGISTEATION   OF   INSTEUSrENTS. 

plcted,  and  compare  it  with  the  original.     The  officer  seems 
to  act  in  the  capacity  of  agent  of  the  grantee. 
§  1 50.  To  Whom  is  the  OHieer  Responsible  for  Errors  ? — 

If  this  were  a  purely  speculative  question,  and  not  one 
which  must  be  determined  by  the  weight  of  authority,  one 
might  be  led  to  inquire  why  it  is  that  for  such  acts  of  non- 
feasance or  misfeasance  these  officers  are  not  always  re- 
quired to  answer  to  the  same  class  of  persons.  As  will 
presently  appear,  the  innocent  purchaser  is  in  some  in- 
stances regarded  as  the  one  whose  rights  are  prejudiced  by 
acts  of  negligence,  somewhat  similar  to  those  treated  of  in 
the  opinion  above  quoted,  and  the  record  remains  unques- 
tioned.^ 

§  151.  DifFereut  Construction  of  the  Statute. —  The 
case  of  Terrel  v.  AndreAV  County  may  be  regarded  as  set- 
tling the  law  upon  this  question  for  the  state  within  Avhose 
jurisdiction  it  was  decided;  but  the  principles  upon  which 
the  decision  is  based  not  only  may  be  questioned,  but  con- 
fronted by  a  very  respectable  array  of  authorities  express- 
ing opposite  views. 

§  152.  The  Notice  Unaffected  by  Errors  in  Record- 
ing.—  In  a  case  where  the  records  had  been  mutilated  and 
partially  destroyed,  Breese,  J.,  who  delivered  the  opinion 
of  the  court,  in  commenting  upon  the  doubts  raised  as  to 
whether  the  deed  had  been  properly  recorded  in  the  first 
instance,  says:  "  But  assuming  that  the  deed  was  not  prop- 
erly recorded  in  the  first  instance,  we  then  say  that  it  is 
sufficient  that  the  deed  was  left  for  record  by  the  grantee."  ^ 

§  153.  Partijil  Omission. —  So  in  another  case  arising 
in  the  same  state,  it  was  held  that  Avhen  the  deed  is  left 
Avith  the  officer,  the  grantee  has  done  all  he  is  required  to 

1  Throckmorton  v.  Price,  28  Tex. ,  605 ;  Franklin  v.  Cannon,  1  Root 
(Conn.),  500.  See,  also,  infra,  §  152  etseq.;  Temple  v.  The  People,  6 
Bradw.,  378. 

-  Merrick  u.  Wallace,  19  111.,  486;  Weise  v.  Barker,  2  Pac.  Rep.,  919 
(Colo.).  See  Gammon  v.  Hodges,  73  111.,  140;  Shannon  v.  Hall,  72  111., 
354;  Mims  v.  Mims,  35  Ala.,  23. 


EKKOKS   IN   THE   EECOKD.  97 

do,  and  Ms  rights  will  be  protected  though  the  recorder 
records  only  a  part  of  the  deed.' 
"§  154.  Entire  Omission. —  So,  also,  was  it  held  in  the 
case  of  Throckmorton  v.  Price,-  that  a  grantor  leaving  his 
deed  for  record  is  not  bound  to  see  that  it  is  recorded.  His 
filing  it  is  regarded  as  equivalent  to  its  registration  so  far 
as  he  is  concerned,  and  his  rights  will  be  protected  though 
it  be  not  recorded  at  all.' 

§  155.  Tiews  of  Early  American  Authorities,  1793. — 
That  there  is  no  novelty  in  this  view  of  the  law  will  ap- 
pear by  consulting  the  earlier  American  authorities.  In  the 
case  of  Cannon  v.  Franklin,*  decided  in  Connecticut  as  early 
as  1793,  it  was  held,  where  a  deed  had  remained  for  a  long 
time  in  the  office  of  the  clerk  without  being  recorded, 
through  no  fault  of  the  grantee,  that  he  should  not  be  prej- 
udiced by  the  negligence  of  the  officer,  but  the  deed  should 
be  regarded  as  recorded  from  the  time  it  was  left  with  the 
ofiicer  for  that  purpose.^ 

§  156.  Same — 171)4. —  In  another  case  a  mortgage  was 
delivered  to  the  clerk  for  registry,  on  June  26, 1766,  and  after 
an  indorsement  was  made  thereon  to  the  effect  that  it  was 
then  duly  registered,  it  was  returned  to  the  mortgagee. 
Subsequently,  in  the  year  l771,  the  land  was  conveyed  by 
the  mortfi-aofor  to  another,  and  the  deed  was  recorded  the 
same  year.  The  land  was  conveyed  by  deed  to  still  another 
purchaser,  without  notice,  in  1772,  and  the  deed  recorded 
immediately ;  the  purchaser  going  into  possession  in  1773. 
The  mortgage  was  not  actually  copied  upon  the  records 
until  as  late  as  1794:;  yet  in  an  action  of  ejectment  by  the 
mortgagee,  he  was  held  to  be  entitled  to  the  possession,  as 
he  was  not  at  fault  m  the  matter  of  registration.  The  de- 
posit of  the  mortgage  with  the  clerk  was  all  the  duty  which 

1  Riggs  V.  Boylan,  4  Biss.,  445;  Oats  v.  Walls,  28  Ark.,  244. 

2  28  Tex.,  605 ;  McGregor  i\  Hall,  3  Stewart  &  Porter  (Ala.),  307. 
sPasch.  Dig.,  §210. 

*  1  Root,  500. 

^Hartmyer  v.  Gates,  1  Root,  61  [decided  in  1774];  McDonald  v.  Leach, 
Kingley  (Conn.)  72  [1786]. 
7 


OS  NOTICE   BY    REGISTRATION   OF   INSTRUMENTS. 

the  law  imposed  upon  him,  and  all  subsequent  purchasers 
were  thereby  constructively  notified  of  the  incumbrance.* 

§  157.  Destruction  of  the  Eecords  Does  Not  Affect 
Notice. —  It  has  also  been  decided  that  where  the  deed  has 
been  once  recorded,  a  subsequent  burning  or  other  destruc- 
tion of  the  records  will  not  render  the.  same  ineffectual  as 
notice-to  subsei]uent  purchasers.^  Tliis  latter  position  will 
hardly  be  disputed,  j^et  it  is  supported  by  the  same  reason- 
inir  as  that  ur^ed  in  defense  of  the  constructive  notice  of  a 
deed  properly  deposited  for  record,  and  omitted,  or  improp- 
erly transcribed,  by  a  negligent  officer. 

§  1 58.  Effect  of  Error  in  Amount  Secured  by  Mort- 
gage.—  Upon  the  other  hand,  it  was  decided  where  a  clerk, 
in  recording  a  mortgage,  committed  an  error  in  transcrib- 
ing the  amount  secured,  and  rendered  it  three  hundred  in- 
stead of  tlirce  thousaiul  dollars,  that  the  record  was  only 
notice  of  the  amount  therein  expressed.* 

§  15t).  Error  in  Description. —  So  where,  in  recording, 
a  conveyance  of  the  east  half  of  a  tract  of  land  was  re- 
corded by  mistake  as  the  west  half  the  error  was  held  to 
vitiate  the  record.* 

§  IGO.  Frauilulent  Concealment  by  Officer. —  And  even 
■where  the  officer  designedly,  and  for  the  purpose  of  con- 
cealment and  fraud,  copied  a  deed  deposited  with  him  for 
record  into  a  book  which  was  no  longer  used  as  a  record  of 
titles,  the  deed  was  held  not  to  be  recorded,  and  failed  to 
impart  notice  constructively.^ 

§  KJl.  Immaterial  Errors. —  But  mere  clerical  errors, 
such  as  a  mistake  in  a  letter  in  the  name  of  a  trustee  in  an 
assignment,  or  when  the  assignment  is  stated  to  be  to  one 
person  and  the  habendum  is  to  another,  will  certainly  not 

1  Jiukl  V.  Woodruff,  2  Root,  298. 

-' Alvis  V.  Morrison,  63  111.,  181 ;  Shannon  v.  Hall,  72  111.,  354;  23  Am. 
Rep.,  146.    See  note  to  Alvis  v.  Morrison,  14  Am.  Rep.,  117. 

3  Frost  V.  Beekman,  1  John.s.  Ch.,  288;  Beekman  v.  Frost,  18  Johns., 
544;  Peck  v.  MaUams,  10  N.  Y.,  509. 

*  Sanger  v.  Craigue,  10  Vt.,  555. 

5  Sawyer  v.  Adams,  8  Vt.,  172. 


EKROES  rST  THE  EECOKD,  99 

rob  tlie  record  of  its  cliaracter  as  constructive  notice.^  So, 
where  there  is  enough  upon  the  record  to  put  a  prudent  man 
upon  inquiry,  it  has  generally  been  held  sufficient  to  amount 
to  constructive  notice,  although  the  property  is  misdescribed 
in  the  record.^ 

§  162.  Principle  (xoyeriiing  Errors  in  the  Record. —  In 
order  to  arrive  at  a  correct  conclusion,  upon  principle,  in 
regard  to  the  conflicting  rights  of  prior  and  subsequent  ])ur- 
cliasers,  as  affected  by  the  registry  laws,  one  of  the  most 
pertinent  inquiries  is.  For  lohose  'benefit  was  the  statute  en- 
acted? Or,  in  other  words,  whom  does  it  protect,  and  upon 
Avhom  does  it  impose  additional  burdens?  A  brief  glance 
at  the  common  law  status  of  the  parties  will  answer  these 
questions  at  once.  The  prior  grantee  was  secure  without 
the  aid  of  the  statute,  whether  the  subsequent  pm'chaser 
knew  of  the  existence  of  his  deed  or  not.  The  purchaser 
had  the  most  imperfect  means  of  ascertaining  the  condition 
of  the  title.  The  statute  was  interposed  for  the  purpose  of 
furnishing  him  with  the  necessary  information,  and  in 
doing  so  it  was  found  necessary  to  impose  an  additional 
obligation  on  the  prior  grantee.  If,  then,  the  law  is  prima- 
rily for  the  protection  of  the  subsequent  purchaser,  it 
would  seem  that  any  breach  of  duty  by  the  officer  was  a 
violation  of  his  rights  in  the  premises,  and  the  delinquent 
official  should  be  required  to  answer  to  him.  Tlie  conclu- 
sion seems  to  follow  inevitably,  that,  from  the  deposit  of  the 
instrument  with  the  proper  officer  for  record,  it  should  be 
regarded  as  constructive  notice  to  all  persons  who  subse- 
quently deal  with  the  title,  notwithstanding  any  errors  by 
the  officer  in  recording  the  instrument,  or  even  when  he 
neglects  to  record  it  at  all.  The  eiffect  of  an  error  commit- 
ted by  the  recorder  must  be  carefully  distinguished  from 
the  consequences  of  misleading  errors  in  the  original.  Even 
where  the  statute  makes  the  filing  of  the  instrument  notice 
to  all  persons  subsequently  deahng  with  the  title,  the  error 

iWyatt  V.  Barwell,  19  Vesey,  Jr.,  435;  Ince  v.  Everard,  6  T.  E.,  545. 
2  Partridge  v.  Smith,  2  Biss.  C.  Ct.,  183. 


loo  NOTICE   BY    KEOISTKATIOX   OF   INSTRUMENTS. 

by  which  the  purchaser  is  misled  takes  effect  as  soon  as  the 
instrument  is  deposited  with  the  officer.  It  is  the  fault  of 
the  party  who  gives  the  notice  and  not  of  the  officer  who 
transcribes  the  erroneous  instrument.  In  the  other  case  the 
duty  of  the  grantee  is  fully  accomplished  when  a  perfect 
instrument  is  deposited  in  the  hands  of  the  proper  officer, 
and  he  should  not  be  held  responsible  for  the  latter's  negli- 
gence in  discharging  a  public  duty.' 

§  163.  Failure  to  Kecord  in  Proper  Time. —  So,  where 
a  time  is  fixed  by  law  within  which  an  instrument  is  re- 
quired to  be  recorded  in  order  to  operate  as  notice  to 
subsequent  purchasers,  and  the  officer,  through  press  of 
business,  negligence,  or  dishonest  motives,  fails  to  record  it 
within  such  a  time,  his  failure  will  not  be  allowed  to  work 
prejudice  to  the  interests  of  the  party  who  is  interested  in 
maintaining  the  validity  of  the  record,  when  the  instru- 
ment has  been  deposited  with  the  recorder  within  the  stat- 
utory period.- 

§  164.  The  Index. —  There  are  other  errors  committed 
by  the  recording  officers,  scarcely  less  misleading  in  their 
character,  or  disastrous  in  their  operation,  than  mistakes  or 
omissions  in  copying  the  instruments  fi[led  for  record.  The 
index  to  the  record  is  of  such  importance  that  without 
it  the  cost  of  emplo}ing  a  competent  person  to  examine 
the  records  would,  in  some  instances,  equal,  if  not  exceed, 
the  value  of  the  property  to  be  conveyed.  These  are,  in 
some  cases,  held  to  be  essential  parts  of  the  records,  in 
the  absence  of  which  subsequent  purchasers  would  not  be 
charged  with  notice.'  In  this  case  it  was  so  held,  though 
the  question  was  not  essential,  and  had  nothing  to  do  with 
a  detennination  of  the  controversy ;  as  the  purchaser  was 
charged  with  actual  notice  of  the  recorded  but  non-indexed 
mortgage.     The  question  was  also   discussed  in  Schell  v. 


1  Hughes  V.  Dudnam,  8  Jones,  127. 
SHaiTold  V.  Simons,  9  Mo.,  326. 
»Speer  v.  Evans,  47  Penn.  St.,  141. 


EEKOKS  IN  THE  RECOKD.  101 

Stein/  but  no  decisive  conclusion  arrived  at,  for  the  reason  • 
that  in  that  case  the  deed  was  properly  entered,  as  the  stat- 
ute required,  in  the  index  to  the  volume  in  which  it  was  re- 
corded, but  was  omitted  from  the  general  index  kept  by  the 
recording  officer,  for  which,  however,  the  law  made  no  pro- 
vision. In  this  case  the  court  regarded  the  officer  as  rest- 
ing under  an  obligation  to  furnish  the  necessary  information 
to  searchers  of  the  records,  and  if  he  voluntarily  provided 
a  general  index,  upon  the  correctness  of  which  they  were 
induced  to  rely,  he  was  liable  to  such  as  were  misled  by 
failure  to  make  entries  therein  according  to  his  usual  custom. 

§  165.  Failure  to  Index  Does  Not  AfiFect  Record. — 
Where,  however,  the  question  has  come  up  directly  for  de- 
cision, it  has  been  held,  in  the  majority  of  cases,  that  the 
failure  to  index  is  an  act  of  misprision  for  which  the  officer 
is  liable  to  the  searcher  of  the  records  who  is  thereby  misled 
to  his  injur}^^  The  grounds  upon  which  this  is  placed,  in  a 
recent  case,^  seem  very  reasonable.  It  is  claimed  that  the 
ease  with  which  what  is  on  the  records  may  be  found  is  not 
a  matter  which  concerns  the  owner  of  the  deed,  but  rather 
the  searcher  of  the  records.  The  index  is  made  for  the 
benefit  of  the  public  who  may  desire  to  use  it  for  the  pur- 
pose of  investigating  the  condition  of  titles  to  property, 
and  not  for  the  benefit  of  the  owners  of  the  property, 
who  know  that  they  have  done  all  that  the  law  requires  of 
them  in  filing  their  evidence  of  title  for  record.^ 

§  166.  Error  in  Index  Does  Not  Affect  Record. —  A  case 
decided  under  the  Iowa  statute  presents  some  striking  if 
not  perplexing  features.^  The  statute  provides  for  index- 
ing all  instruments  filed.     Such  index  to  show  the  names  of 

1  76  Peiin.  St.,  398. 

2  Curtis  V.  Lyman,  24  Vt.,  338;  Bishop  v.  Schneider,  46  Mo.,  472;  B'd 
of  Com'rs  v.  Babcock,  5  Or.,  473;  Green  v.  Carrington,  16  Ohio  St.,  548; 
Speer  v.  Evans,  47  Pa.  St.,  141. 

3  Chatham  v.  Bradford,  50  Ga.,  327. 

<  Mut.  Life  Ins.  Co.  v.  Dake,  1  Abb.  (N.  C),  381 ;  Board  of  Com'rs  v. 
Babcock,  5  Or.,  472;  Green  v.  Carrington,  16  Ohio  St.,  548. 
8  Barney  v.  Little,  15  Iowa,  527. 


102  NOTICE   BY   REGISTRATION   OF   INSTRUMENTS. 

grantors  and  grantees,  the  time  of  tiling,  the  date  of  the 
instrument,  its  character,  and  the  book  and  page  where  the 
record  may  be  found.  The  entries  in  the  index,  with  the 
exception  of  the  page,  are  completed  before  the  instrument 
is  required  to  be  recorded  in  extenso.  The  views  expressed 
by  Judge  Dillon  in  delivering  the  opinion  of  the  court  in 
this  case  are  not  in  entire  accord  with  the  authorities  here- 
inbefore cited.  But  the  statute  is  peculiar  in  respect  to  the 
feature  of  indexing.  Compliance  with  its  requirements,  in 
this  particular,  renders  the  entries  made  "  constructive  notice 
to  all  the  Avorld  of  the  rights  of  the  grantee  conferred  by 
such  instrument,"  and  the  instrument  may  be  copied  into 
the  records  "  as  soon  as  practicable,"  after  which  the  index 
entries  are  completed  by  inserting  the  number  of  the  page 
upon  which  the  instrument  is  recorded.  In  this  instance  the 
recording  officer  discharged  his  duties  without  substantial 
error  or  omission  until  he  came  to  the  final  act  required  in 
order  to  complete  the  performance  of  his  functions  in  con- 
nection with  this  particular  deed.  He  entered  the  wrong 
jpage  of  the  record  opposite  his  entries  in  the  index ;  so  that 
instead  of  directing  the  attention  of  the  examiner  of  the 
records  to  the  page  where  the  instrument,  briefly  described 
in  the  al})habetical  index,  was  copied  at  length,  he  was  re- 
ferred to  a  different  page  where  another  deed  was  recorded, 
from  the  same  grantor,  but  to  a  different  grantee.  This  was 
held  sufficient  to  put  a  purchaser  upon  inquiry,  and  by  the 
dissimilarity  between  the  names  of  parties  as  they  apj^eared 
in  the  index  and  on  the  page  referred  to,  suggest  an  error 
which  would  have  been  fully  disclosed  by  a  more  careful 
search. 

§  H>7.  Failure  to  Index  Under  Iowa  Statute.— This 
would  seem  to  be  a  sti'onger  case  in  support  of  the  validity 
of  records,  as  constructive  notice,  regardless  of  the  index, 
than  that  of  Chatham  v.  Bradford,  were  it  not  for  the 
reasoning  by  which  it  is  supported.  If  an  index,  mislead- 
ing on  account  of  a  palpable  error,  might  not  vitiate  the 
record,  it  could  be  claimed,  with  a  fair  show  of  reason,  that 


EKROKS    IN   THE   EECOED.  103 

a  perfect  record  with  no  index  would  be  valid.  But  this 
court,  earlier  in  the  same  term,  decided  that  a  failure  to 
index  rendered  the  record  void  as  to  subsequent  purchasers 
without  actual  notice.^  This,  too,  under  an  earher  statute, 
which  had  not  the  same  provisions  as  to  indexing.  The 
portion  prescribing  the  manner  of  indexing  was  not,  as  it 
was  in  the  later  statute,  preceded  by  the  statement  that  no 
instrument  affecting  real  estate  should  be  of  any  validity 
against  subsequent  purchasers,  etc.,  "unless  recorded  in  the 
office  of  the  recorder  of  deeds,  in  the  county  in  which  the 
land  hes,  as  hereinafter  provided.''''  The  earlier  statute  also 
contained  a  provision  tliat  instruments  required  to  be  re- 
corded should,  "  from  the  time  of  filing  the  same  with  the 
recorder,  impart  notice  to  all  persons  of  the  contents 
thereof."  The  court,  however,  in  the  case  last  cited,  held, 
as  in  the  case  of  Terrel  v.  Andrew  County,-  that  the  notice 
by  filing  was  only  temporary,  and  ceased  when  the  instru- 
ment had  been  spread  upon  the  records,  and  a  failure  to 
index  rendered  the  record  worthless.  In  so  deciding,  the 
eminent  judge  who  delivered  the  opinion  in  both  the  Iowa 
cases  followed  the  authorities  in  that  state,^  and  has  in  turn 
been  followed  by  others  to  the  same  effect.* 

§  168.  Index  Sufficient  to  Put  Upon  Inquiry. —  Where, 
however,  the  requirements  of  the  statute  have  been  complied 
with  in  every  substantial  particular,  a  mere  omission  b}^  the 
recording  officer  to  make  any  of  the  entries  in  his  index 
which  the  act  prescribes,  where  such  omission  leaves  enough 
to  direct  the  attention  of  one  who  examines  the  index  to 
the  proper  book  and  page,  or  is  even  sufficient  to  put  a  cau- 
tious or  prudent  man  upon  inquiry,  the  records  will  not  be 
thereby  rendered  void,  as  notice  to  purchasers.  As,  where 
the  description  was  omitted  and  instead  thereof  the  recorder 

I  Barney  V.  McCai-ty,  15  la.,  510. 
2 44  Mo.,  309. 

^Miller  v.  Bradford,  12  la.,  14;  Noyes  v.  Harr,  13  id.,  570;  Breed  v. 
Conley,  14id.,269. 
<  Gwinn  v.  Turner,  18  la.,  1 ;  Whalley  v.  Small,  25  id.,  184. 


104  NOTICE   BY   REGISTRATION   OF   INSTRUMENTS. 

inserted  the  words,  "  see  records."  This  was  held  not  to  be 
misleading,  and  hence  did  not  vitiate  the  record.^  So,  too, 
where  instead  of  the  description  Avere  the  words  "  certain 
lots  of  land,"  the  court  held  this  sufficient  to  put  a  purchaser 
upon  inquiry,  and  hence  to  charge  him  with  notice  construct- 
ively.- 

§  169.  Index  Held  Part  of  the  Record. —  In  a  case 
decided  under  a  statute  clothing  the  index  Avith  the  charac- 
ter of  notice  to  subsequent  purchasers,  it  Avas  held  to  be  a 
record  by  Avhich  they  were  charged  with  constructiA'e  notice, 
even  Avhen  there  Avas  a  substantial  error  in  the  record  itself.'' 

§  170.  Orautee  Cannot  Control  the  Officer.  —  It  seems 
the  more  reasonable  doctrine  that  the  neglect  of  clerical 
duties  b}'  the  officer  should  not  be  chargeable  to  the  grantee 
or  mortgagee,  AA^ho,  in  depositing  the  instrument  for  record, 
does  so  in  obedience  to  the  mandate  of  the  laAv.  The  doc- 
trine of  respondeat  superior  cannot  apply  as  though  the 
officer  were  the  priA^ate  agent  or  servant  of  the  party  whose 
deed  is  deposited.  He  is  not  chosen  by  the  party  depositing 
the  instrument  to  perform  the  duties  of  filing,  recording 
and  indexing,  but  is  designated  by  the  law  as  the  propei' 
officer,  and  the  grantee  or  mortgagee  is  compelled  to  appl  a' 
to  him  and  none  other,  and  having  done  so,  has  no  control 
whatever  over  his  action.* 

§171.  Mortgagee  Not  Affected  by  Officer's  Faihire. — 
It  has  therefore  been  justly  held,  where  the  law  made  it 
incumbent  upon  the  county  clerk  to  number  mortgages  of 
chattels  when  deposited  for  record,  that  his  failure  to  per- 
form this  duty  in  any  instance  should  not  impair  the  rights 
of  the  mortgagee,  hoAvever  much  subsequent  purchasers 
might  be  misled  to  their  injury  by  the  omission.^ 

§  172.  Index  No  Part  of  the  Record. —  So,  also,  AAhcre 
the  statute  required  the  clerk  to  make  an  index  of  the  rcc- 

'  Calvin  v.  Bowman,  10  la.,  529;  White  v.  Hampton,  13  id.,  259. 

2Bostwick  V.  Powers,  13  la.,  456. 

3 Shove  V.  Larsen,  23  Wis.,  143. 

*  Infra. 

'Dodge  V.  Porter,  18  Barb.,  193. 


EEEOES   m   THE   EECOED.  105 

ords,  it  was  held  that  this  duty  was  prescribed  for  the  pur- 
pose of  furnishing  facilities  for  those  interested  in  searching 
the  records.  And  that  the  index  being  no  part  of  the  rec- 
ords themselves,  it  was  not  essential  that  the  instrument 
should  be  indexed  in  order  to  become  constructive  notice  to 
subsequent  parties.^ 

§  173.  Same  —  Current  of  Authority. —  The  fact  that 
questions  of  this  kind  are  decided  by  courts  with  different 
and  independent  jurisdiction,  each  construing  its  own  stat- 
utes, may  account,  to  some  extent,  for  the  diversity  of 
opinion  upon  the  importance  of  indexing  the  records.  But 
the  difference  is  too  marked  and  decided  to  be  altogether 
accounted  for  in  this  manner.  It  will  be  noticed  that  in 
neighboring  states  having  registry  laws  with  substantially 
the  same  provisions  in  this  respect,  the  statutes  have  received 
opposite  constructions.  But  the  current  of  authority  seems 
to  be  decidedly  against  the  doctrine  that  the  index  is  an 
essential  part  of  the  record.- 


1  Curtis  V.  Lyman,  24  Vt.,  338. 

2  See  cases  cited  swpra. 


106  NOTICE   BY   EEGISTRATION   OF   INSTBUMENTS. 


V.  Ereoks  by  the  Paet?  Filing  the  Instktjment. 

§  174.  Misleading  Errors  in  Original 

175.  Insufficient  Description. 

176.  En-ors  in  Numbering. 

177.  Description  of  Cliattels. 

178.  Description  of  Debt  Due. 

179.  Conditions  Insufficiently  Expressed. 

180.  Sufficient  Certainty. 

181.  Approximate  Certainty. 

182.  Mortgage  Securing  Future  Advances. 

183.  Description  Which  May  be  Rendered  Certain  by  Inquiry,  Suffi- 

cient. 

184.  EiTors  Not  Misleading. 

185.  Immaterial  Where  Purchaser  Not  Misled. 

186.  Instrvmieuts  Should  be  Filed  for  Record  in  Their  True  Character. 

187.  Deed  With  Defeasance  is  Mortgage. 

188.  Defeasance  Must  be  Recorded  as  Mortgage. 

189.  Parol  Defeasance,  Deed  Recorded  as  Mortgage. 

190.  Sheriff's  Deed  Recorded  as  Mortgage,  Insufficient. 

191.  Record  of  Secret  Mortgage. 

192.  Must  be  Filed  in  Proper  County. 

193.  Effect  of  Filing  in  AVrong  County. 

194.  Deposit  of  Chattel  Mortgage  in  Wrong  Town. 

195.  Change  of  County,  Subsequent  to  Fihng,  Will  Not  Affect  Reg- 

istry. 

§  174.  Misleading  Errors  in  Original. —  There  are  er- 
rors, mistakes,  omissions  and  ambiguities,  such  as  are  cal- 
culated to  mi'slead  an  examiner  of  the  records,  for  which 
the  recording  officer  is  in  no  way  responsible.  This  is  when 
the  fault  lies  in  the  original.  In  such  cases,  if  the  discrep- 
ancy is  of  a  substantial  nature,  the  record  is  vitiated.  As 
where  the  property  intended  to  be  conveyed  was  the  east 
half  of  a  lot,  and  was  described  in  the  deed  as  the  west  half 
the  record  failed  to  give  notice  of  the  conveyance  of  the 
propert}''  intended,' 

§  175.  Insnfflcient  Description. — Also,  where  a  transfer 
of  a  lease  of  real  estate  was  made  by  a  separate  instrument, 
which,  being  a  transfer  of  an  interest  in  land,  was  entitled 

1  Sanger  v.  Craigue,  10  Vt.,  555 ;  Lally  v.  Holland,  1  Swan  (Tenn.),  396. 


EEKOKS    Br   PAKTY    FILING   ESTSTEUMENT.  107 

to  be  recorded,  it  was  held  that  in  order  to  operate  as  con- 
structive notice  to  subsequent  purchasers,  it  should  contain 
such  a  description,  not  only  of  the  premises,  but  of  the 
term,  that  the  original  lease  could  be  recognized  as  the  thing 
transferred.^ 

§  176.  Errors  in  Niiml)erinf?. —  The  purchaser  at  an  ex- 
ecution sale  of  land  previously  conveyed  by  a  deed  in  which 
the  land  is  so  indefinitely  described  or  erroneously  num- 
bered that  it  cannot  be  identified,  or  is  likely  to  be  mistaken 
for  another  tract,  is  not  affected  by  the  record  of  such  prior 
deed  with  notice  of  what  was  intended  to  be  thereby  con- 
veyed.- 

§  177.  Description  of  Chattels. —  The  record  of  a  mort- 
gage of  chattels,  in  order  to  operate  as  notice  to  subsequent 
purchasers,  must  contain  such  a  description  of  the  things 
included  in  the  mortgage  as  to  enable  one  examining  the 
records  to  identify  the  property.  As  where  cows  were 
mortgaged  and  left  in  possession  of  the  mortgagor,  their 
calves,  brought  forth  after  the  execution  of  the  mortgage, 
would  not  be  included  therein  unless  mentioned.* 

§  178.  Description  of  Debt  Due. —  So,  where  the  instru- 
ment was  a  mortgage,  and  the  description  of  the  debt 
secured  was  "  a  debt  due  from  the  mortgagor  to  the  mort- 
gagee by  note,  dated  lOtli  of  May,  1834,  on  demand,  with 
interest,"  without  specifying  the  amount,  it  was  held  not  to 
be  notice  to  subsequent  purchasers  of  a  valid  security,  for 
the  reason  that  the  spirit  of  the  recording  acts  I'equires  the 
record  to  disclose,  with  as  much  certainty  as  possible,  the 
state  of  the  incumbrances  upon  the  property.* 

§  17  9.  Conditions  Insufficiently  Expressed. —  So,  also, 
where  the  condition  of  the  morto^ao-e  was  that  the  luort- 
gagor  should  pay  all  notes  indorsed  by  the  mortgagee  for 

1  Mai-tindale  v.  Price,  14  Ind.,  115. 

2 Bank  v.  Ammou,  27  Penn.  St.,  172;  Nelson  v.  Wade,  21  la.,  49;  Her- 
man V.  Deming,  44  Conn.,  124;  Miiri^hy  v.  Hendricks,  57  Ind.,  593: 
Mundy  v.  Vawter,  3  Gratt.,  518;  Thorp  v.  Merrill,  21  Minn.,  336;  Rodgers 
V.  Kavanaugh,  24  HI.,  583. 

'■*  Winter  v.  Landphere,  42  la.,  471. 

*  Hart  V.  Chalker,  14  Conn.,  77. 


108  NOTICE    BY   KEGISTKATION   OF   INSTRUMENTS. 

the  mortgagor,  and  all  receipts  held  by  the  mortgagee 
against  the  mortgagor,  the  record  of  such  mortgage  was 
held  void  as  against  creditors  of  the  mortgagor,^ 

§  1 80.  Sufticient  Certainty. —  On  the  other  hand,  where 
the  mortgage  described  the  debts  secured  with  such  partic- 
ularity that  there  could  be  no  difficulty  in  determining  by 
inquiry  what  debts  were  and  what  were  not  embraced  in 
the  description,  the  maxim,  "  That  is  certain  which  may  be 
made  certain,"  will  be  applied.  It  has  accordingly  been 
held  not  to  be  requisite  that  the  condition  should  be  so  com- 
pletely certain  as  to  preclude  the  necessity  of  extraneous 
inquiry.- 

§  181.  Approximate  Certainty. —  And  where  the  debt 
secured  ^vas  described  in  the  defeasance  clause  as  follows : 
"  If  I  shaU  well  and  truly  pay  to  B.,  on  demand,  with  in- 
terest, the  sum  of  $1,500,  which  I  am  indebted  to  him,  on 
book  and  by  several  notes,  the  exact  date  and  amount  not 
recollected,  but  amounting,  in  the  whole,  together  with  the 
debt  on  book,  to  the  sum  of  $1,500  07'  thereabouts,  then  this 
deed  shall  be  void ; "  and  it  appearing  that  when  the  mort- 
gage was  given  the  mortgagor  was  in  failing  circumstances 
and  had  not  time  to  ascertain  the  precise  amount  to  be  se- 
cured, which  was,  in  reality,  in  excess  of  $1,500,  the  mort- 
gage was  held  valid  as  against  other  creditors  and  subsequent 
incumbrancers,  and  the  record  operated  as  notice  to  them 
to  the  extent  of  the  amount  mentioned  therein,' 

§  182.  Mortgage  Seeming  Futnre  Advances. —  It  has 
also  been  held  that  the  record  of  a  mortgage  is  not  intended 
as  notice  of  the  amount  due  thereon,  and  is  valid  when 
future  advances  are  secured,  without  specifying  the  amount 
with  particularity.* 

iPettibone  v.  Griswold,  4  Conn.,  158. 

2  Young  f.  Wilson,  27  N.  Y.,  351;  MoneU  v.  Smith,  5  Cow.,  441;  Rob- 
inson V.  Williams,  23  N.  Y.,  380;  Stoughton  v.  Pasco,  5  Conn.,  442; 
Merrills  v.  Swift,  18  id.,  257;  United  States  v.  Hooe,  3  Cranch,  73; 
Ki-amer  v.  Farmers'  and  Mechs.'  Bank,  15  Ohio,  253. 

SMerriUs  v.  S^vift,  18  Conn.,  257. 

<BeU  V.  Fleming,  13  N.  J.  Eq.,  13. 


EEEOES   BY   PAETT   FILING   INSTRUMENT.  109 

§  183.  Description  Which  May  be  Rendered  Certain 
by  Inqniry,  Sufficient. —  In  order  that  the  record  of  a  deed 
shall  be  vitiated  by  errors  or  uncertainty  in  the  description, 
or  other  part  of  the  original,  the  error  must  be  in  a  matter 
of  substance,  or  the  uncertainty  one  which  cannot  be  ren- 
dered certain  by  such  inquiries  as  the  record  would  naturally 
excite.  So,  where  there  was  a  contract  to  convey,  in  which 
the  property  was  descrilDed  as  so  many  acres  of  "  my  land 
which  I  hold  in  the  South  Mountain,  anywhere  on  the  turn- 
pike road  between  ISTewman's  and  the  bridge  over  the  Cana- 
dequingt  creek,"  it  was  held  that  this  gave  the  covenantee 
a  right  of  selection  within  the  prescribed  hmits,  and  the 
record  of  the  instrument  was  constructive  notice  of  that 
right.^ 

§  184.  Errors  Not  Misleading. —  So,  also,  where,  in  a 
deed,  the  number  of  the  town  and  range  were  transposed, 
so  that  there  was  no  such  piece  of  land  in  the  county  as 
described  in  the  deed,  it  was  held  that  the  record  of  the 
deed  disclosed  enough  to  put  a  prudent  man  upon  inquiry, 
and  as  such  was  suiBcient  notice  to  subsequent  purchasers 
of  the  land  actually  intended  to  be  conve3"ed.2 

§  185.  Immaterial  Where  Purchaser  Not  Misled. —  The 
error  in  the  deed,  in  order  to  vitiate  the  record  thereof, 
must  be  one  calculated  to  mislead  the  pm'chaser.  There- 
fore, if  the  purchaser  had  any  knowledge  of  the  error,  or 
from  his  knowledge  of  the  property  and  its  surroundings, 
would  have  been  able  to  interpret  the  record  and  give  it  the 
meaning  it  was  supposed  and  intended  to  convey,  it  Avoidd 
be  sufficient  to  charge  him  with  notice,^  As  where  a  mis- 
take in  the  record  was  discovered  by  the  attorney  of  the 
subsequent  purchaser,  such  mistake  being  in  the  description 
"West"  instead  of  "Korth,"  the  fact  that,  this  was  easily 
recognized  by  the  attorney  of  the  purchaser  while  engaged 

•Brotherton  v.  Livingston,  3  W.  &  S.,  334. 

2Parti-idge  v.  Smith,  2  Biss.,  183.    This  is  probably  as  strong  a  case  as 
the  rule  will  support. 
3Erickson  v.  Raflerty,  79  111.,  209. 


110  NOTICE   BY   KEGISTKATION   OF   INSTKHMENTS. 

in  examining  the  records  for  his  principal,  manifested  such  a 
knowledge  of  the  property  and  its  situation'  that  the  mis- 
take would  not  vitiate  the  record.* 

§  18G.  Instruments  Should  be  Filed  for  Becord  in 
Their  True  Character. —  Another  important  requirement 
in  regard  to  the  registry  of  instruments,  in  order  that  they 
may  operate  as  constructive  notice,  is  that  they  should  be 
registered  in  their  true  characters.  ■  Otherwise  they  may 
fail  to  give  notice,  not  only  of  the  estate  or  interest  they 
arc  intended  to  affect,  but  of  that  which  they  on  their  face 
purport  to  convey.  As  where  an  instrument  is  drawn  and 
executed  in  the  form  of  an  absolute  deed,  which  is  intended 
only  to  take  effect  as  a  mortgage,  it  should  be  registered 
as  a  mortgage,  and  not  as  an  absolute  deed.  The  reason  of 
this  is  that  the  instrument,  not  being  an  absolute  convey- 
ance of  the  property,  its  registry  as  such  cannot  charge  any 
one  with  notice  of  its  contents.  It  being  in  reality  a  mort- 
gage, it  should  be  recorded  where  the  searcher  for  mortgeges 
would  be  most  likely  to  find  it  —  in  the  record  of  mort- 
gages.2 

§  187.  Deed  With  Defeasance  is  Mortgage. —  So  Avhere 
there  w^as  a  written  defeasance  to  an  absolute  deed,  and  the 
deed  was  recorded  among  the  absolute  deeds,  but  the  de- 
feasance was  unrecorded,  the  two  instruments  were  treated 
as  one,  and  that  one  a  mortgage,  which,  not  being  properly 
recorded,  through  the  negligence  of  the  parties  interested, 
was  postponed  to  the  lien  of  a  subsequent  judgment.' 

§  188.  Defeasance  Must  be  Recorded  as  Mortgage. — 
So,  also,  where  a  separate  defeasance  was  recorded,  but  in 

'Jones  V.  Bamford,  21  la.,  217;  Thornliill  v.  Burthe,  29  La.  An.,  639; 
Slater  v.  Breese,  36  Mich.,  77;  Shepard  v.  Sliopard,  36  Mich.,  173;  Boon 
V.  Piei-pont,  28  N.  J.  Eq.,  7. 

2Dey  V.  Dunham,  2  Johns.  Ch.,  182;  James  v.  Morey,  2  Cowen,  246; 
Manufacturers'  Bank  v.  Bank  of  Pennsylvania,  7  Watts  &  Serg.,  335. 

^Friedly  v.  Hamilton,  17  Serg.  &  Rawle,  70;  Brown  v.  Dean,  3  Wend., 
208;  Jaques  v.  Weeks,  7  Watts,  261;  Edwards  v.  Trumbull,  50  Penn. 
tSt. ,  509.  In  Pennsylvania  it  would  be  held  good  for  nothing,  either  as  a 
conveyance  or  as  a  mortgage.    Corpman  r.  Baccastow,  84  Pa.  St.,  363. 


EEROES   BY   PAETY   FILING   INSTEUMENT.  Ill 

the  same  book  with  the  deed  instead  of  in  the  record  of 
mortgages,  it  was  held  not  to  amount  to  constructive  notice 
to  a  creditor,  for  the  reason  that  it  would  not  He  in  his  way 
if  examining  the  record  for  mortgages.^ 

§  189.  Parol  Defeasance,  Deed  Recorded  as  Mort- 
gage.—  And  even  where  there  is  no  written  defeasance  to 
the  deed,  but  the  contract  to  re-convey  rests  entirely  in 
parol,  though  upon  the  face  of  it  was  an  absolute  deed ;  or 
when  the  mortgage  is  so  imperfect  in  form  as  not  to  give 
adequate  expression  to  the  intention  of  the  parties,  still  in 
either  case  the  intention  with  which  the  instrument  was 
drawn,  being  the  true  guide  to  its  construction,  will  govern 
its  registration.  If  recorded  otherwise  than  as  a  mortgage, 
the  record  loses  its  character  as  constructive  notice  to  pur- 
chasers or  creditors.- 

§  1 90.  Sheriff's  Deed  Recorded  as  Mortgage,  Insuffi- 
cient.—  So,  where  a  sheriff's  deed  was  at  his  instance  re- 
corded in  the  mortgage  book  instead  of  the  record  of 
absolute  deeds,  it  was  held  that  this  error  rendered  the 
record  void,  and  if  the  deed  were  not  properly  recorded 
until  after  attachment  by  a  creditor,  the  record  could  not 
affect  the  seizure.* 

§  191.  Record  of  Secret  Mortgage. —  There  is  perhaps 
a  stronger  reason  for  discrediting  the  record  of  a  secret 
mortgage  because  of  its  being  recorded  in  the  wrong  book, 
than  there  would  be  for  drawing  the  lines  with  the  same 
strictness  in  cases  where  the  fault  Hes  entirely  with  the  re- 
cording officer.  In  the  one  case  the  fecord  is  misleading, 
because  the  original  instrument  is  designedly  so ;  while  in 
the  other  the  honest  intentions  of  the  parties  have  been 

1  McLanalian  v.  Eeeside,  9  Watts,  508 ;  Grimstone  v.  Carter,  3  Paige, 
421;  Jackson  v.  Van  Valkenburg,  8  Cow.,  260;  Hendrickson's  Appeal, 
24  Pa.  St.,  363;  Corpman  v.  Baccastow,  84  Pa.  St.,  363;  Cogau  v.  Cook, 
23  Minn.,  137. 

2  Shaw  V.  Wilshire,  65  Me.,  485. 

3  Colomer  v.  Morgan,  13  La.  Ann.,  203. 


112  NOTICE   BY   KEGISTEATION   OF   INSTRUMENTS. 

defeated  by  the  misprision  of  a  public  officer  over  whose 
acts  they  could  have  no  control.^ 

§  102.  Must  be  Filed  in  Proper  County. —  Another  im- 
portant requisite  to  the  validity  of  the  record  of  an  instru- 
ment is  that  it  must  be  deposited  for  record  in  the  county, 
town,  parish  or  other  place  designated  by  law  for  the  keep- 
ing of  such  records.  Upon  this  rule  the  courts  of  the  dif- 
ferent states  are  almost,  if  not  quite,  uniformly  agreed, 
however  much  they  may  disagree  as  to  other  details  of  their 
registry  acts.  So  where,  under  the  provisions  of  a  statute 
requiring  instruments  affecting  the  title  to  land  to  be  re- 
corded in  the  town  where  the  land  was  situated,  though  the 
registry  elsewhere  might  be  sufficient  to  charge  those  who 
had  actually  seen  and  read  the  record,  it  would  not  suffice 
to  give  that  constructive  notice  for  which  the  registry  sys- 
tem was  designed.- 

§  193.  Effect  of  Filing  in  Wrong  County. —  Also,  where 
a  new  county  had  been  mapped  out  of  another,  and  the 
land  was  situated  in  the  new  county,  but  a  grantee  not  being 
advised  of  the  change,  which  had  been  legally  prescribed 
while  the  negotiations  for  the  purchase  were  pending,  de- 
posited his  deed  for  record  in  the  old  county  instead  of  the 
new,  its  registration  was  held  to  be  worthless  as  notice  to 
those  who  were  uninformed  of  the  transfer.^ 

§  194.  Deposit  of  Chattel  Mortgage  in  Wrong  Town. — 
So,  also,  where  mortgages  of  chattels  were  required  by 

1  Purchaser  without  notice  from  grantee  in  absolute  deed  intended  as 
mortgage,  protected.  Jaques  v.  Weeks,  7  Watts,  261 ;  Orvis  v.  Newell, 
17  Conn.,  97;  Bush  v.  Golden,  17  id.,  594;  HaiTison  v.  Cachelin,  23  Mo., 
117;  Mesick  v.  Sunderland,  6  Cal.,  297;  Hart  v.  Farm.  &  Mech.  Bank,  33 
Vt.,  252;  Bailey  v.  Myiick,-50  Me.,  171. 

2Pemn  v.  Reed,  35  Vt.,  2;  King  v.  Portis,  77  N.  C,  25;  Astor  v. 
Wells,  4  Wheat.,  466;  Lewis  v.  Baud,  3  McLean,  56;  Stevens  v.  Brown, 
3  Vt.,  420;  Kerns  v.  Swope,  2  Watts,  75;  Hundley  v.  Mo\mt,  8  Sm.  & 
Mar.,  387;  Crosby  v.  Houston,  1  Tex.,  203;  St.  John  v.  Conger,  40  111., 
535;  Stewart  r.  McSweeney,  14  Wis.,  468. 

3  Astor  V.  Wells,  4  Wheat.,  466;  Stewart  v.  McSweeney,  14  Wis.,  468. 


ERRORS    BY    PARTY    FILING    INSTRUMENT.  113 

statute  to  be  recorded  in  the  to^\Ti  where  the  mortgagor  had 
his  domicile,  and  a  mortgage  was  given  b}^  two  joint  owners 
of  certain  articles  of  personal  property,  who  resided  in  dif- 
ferent towns,  which  mortgage  was  only  recorded  in  the 
town  in  which  one  of  such  mortgagors  was  domiciled,  the 
failure  to  record  in  both  towns  was  held  to  render  the  mort- 
gage void  as  against  subsequent  innocent  purchasers.^ 

§  195.  Change  of  County  Subsequent  to  Filing  Will 
Not  Affect  Registry. —  But,  where  the  deed  is  deposited  for 
record  in  the  office  of  the  recorder  of  the  county  in  which 
the  land  is  located  at  the  time,  and  by  a  subsequent  sub- 
division the  land  falls  within  the  boundaries  of  another 
county,  such  change  will  not  affect  the  validity  of  the  regis- 
tration.2 

1  Rich  V.  Roberts,  48  Me.,  548. 

2  Milton  V.  Turner,  38  Tex.,  81. 

8  -•'- 


114  >:OTICE   BV   KEGISTKATION    OF   INSTRUMENTS. 

VI.  Conflicting  Titles  Affected   by  Priority   of  Kegis- 

TKATION. 

§  196.  Ordor  of  Priority  Between  Deeds. 

197.  Simultaneous  Mortgages. 

]  98.  As  Between  Original  Parties,  Priority  Subject  to  Stipulation. 

199.  Registration  Will  Not  Divest  Accrued  Rights. 

200.  Innocent  Purchaser  Not  Chai'ged  "With  Notice  of  Priorities  Ex- 

cept by  the  Record. 

201.  Order  of  Filing  Governs  Priority. 

202.  Deed  Recorded  in  Reasonable  Time. 

203.  Subsequent  Purchasers  Alone  Affected. 

204.  Record  of  Quitclaim. 

205.  The  Instrument  Must  be  in  the  Chain  of  Title, 

206.  Same,  Further  Illustrated. 

207.  Effect  of  Jlissmg  Link. 

208.  Record  Impai'ts  No  Notice  of  Relations  Between  Parties. 

209.  Recitals  of  IMaterial  Facts  Held  Not  to  be  Notice. 

210.  Example  of  Broken  Chain  of  Title. 

211.  Example  of  Contrary  Doctrine. 
213.  The  Above  Criticised. 

213.  Sheriff's  Deed  from  Apparent  Stranger. 

214.  Record  of  Conveyance  Anterior  to  Grantor's  Title. 

215.  Illustration  of  Same. 

216.  Contrary  Doctrine  Criticised. 

217.  Purchaser  from  Hen-  Without  Notice  of  Ancestor's  Uni'ecorded 

Deed. 

218.  Reasons  Assigned  for  the  Rule. 

219.  Reasons  Assigned  for  Contrary  Doctrine. 

220.  The  Rule  Sustained  on  Pi-mcii)le. 

221.  Review  of  Authorities. 

222.  Weight  of  Authority  and  Governing  Principle. 

223.  Record  of  Convej-ances  Between  Strangers  Does  Not  Affect  Pur- 

chasers. 

224.  Effect  of    Record   of    Instraments  Affecting  Chattels  Follows 

Projierty. 

225.  Time  Given  for  the  Registration  of  Deeds. 

226.  Must  be  Pm-chaser  for  Value. 

227.  Assignee  for  Benefit  of  Creditors. 

228.  Creditors  Purchasing  at  Execution  Sale. 

229/    Purchasers  at  Execution    Sale  Notified  by   Registiy  Prior  to 

Sale. 
230.    Interest  of  Mortgagee  Not  Affected  by  Bidding  at  Execution  Sale. 


CONFLICTING    TITLES.  115 

§  196.  Order  of  Priority  Between  Deeds. —  As  between 
unregistered  instruments  affecting  the  title  to  real  estate, 
the  order  of  their  priority  will  be  governed  by  the  order  of 
their  dates.  As  between  registered  instruments,  however, 
they  will  generally  take  precedence  in  the  order  hi  which 
they  are  recorded.^  So  where  there  has  been  a  sale  of  real 
estate  by  an  insolvent  debtor,  for  the  purpose  of  defraud- 
ing his  creditors,  and  the  fraudulent  grantee  has  conveyed 
the  premises  to  an  innocent  purchaser  for  value,  as  between 
the  creditors  of  the  innocent  debtor,  and  the  innocent  pur- 
chaser from  the  fraudulent  grantee,  the  law  will  favor  the 
most  vigilant.- 

§197.  Simultaneous  Mortgages. —  So,  also,  where  two 
mortgages  on  the  same  property  were  simultaneously  given, 
with  the  understanding  between  the  mortgagees  and  the 
mortgagor  that  the  two  were  to  take  effect  as  separate  and 
equal  incumbrances,  and  that  between  them  there  was  to  be 
no  priority,  and  subsequently  one  of  the  mortgagees  re- 
corded and  then  transferred  his  mortgage  to  a  lona  fide 
purchaser,  who  took  without  notice  of  the  other,  and  who, 
in  his  turn,  transferred  the  instrument  to  still  another  inno- 
cent purchaser,  for  value,  before  the  other  mortgage  was 
recorded,  it  was  held  that  the  last  purchaser  might  take  ad- 
vantage of  the  prior  registration  of  his  mortgage.^ 

§  198.  As  Between  Original  Parties,  Priority  Subject 
to  Stipulation. —  In  one  case,  where  a  mortgage  and  a  judg- 
ment against  the  mortgagor  were  entered  of  record  on  the 
same  day,  it  was  held  that,  prima  facie,  they  would  be 
treated  as  taking  effect  simultaneously ;  but  a  verbal  agree- 
ment between  the  parties  that  the  mortgage  was  to  have 

1  Lightner  v.  Mooney,  10  "Watts,  407. 

2  Choteaa  v.  Jones,  11  111.,  300. 

3  Greene  v.  Deal,  4  Hun,  703.  But  see  Greene  v.  Warnick,  64  N.  Y., 
220,  where  Greene  v.  Deal  is  reversed  for  the  reason  that  the  assignee  of 
a  mortgage  is  held  to  be  entitled  to  the  protection  of  the  registiy  laws 
only  with  respect  to  a  subsequent  transfer  of  the  same  mortgage.  See, 
also,  Jones  on  Mortg.,  §  566. 


110  NOTICE    BY   REGISTKATION   OF   INSTRUMENTS. 

precedence  as  notice  would  be  binding  upon  them,  though 
not  upon  a  loiia  fide  assignee  of  the  judgment.^ 
§  199.  Registration  Will  Not  Divest  Accrued  Rights.— 

AVhere  a  purcliaser  with  notice  of  a  prior  unregistered 
conveyance  from  his  grantor  had  his  deed  recorded  first, 
and  then  conveyed  to  another  who  purchased  without  act- 
ual notice  of  the  prior  conveyance,  and  for  a  valuable  con- 
sideration, it  was  lield  that  if  the  first  conveyance  was 
recorded  before  his  purchase,  he  would  be  charged  with 
notice,  notwitlistanding  the  prior  registration  of  his  grant- 
or's deed,  and  the  deed  to  him  would  be  void.-  However, 
had  the  first  mentioned  purchaser  taken  his  conveyance  in 
good  faitli,  ]iis  prior  registry  would  have  given  him  a  per- 
fect title,  which  would  have  passed  to  his  grantee  notwith- 
standing the  subsequent  registration  of  the  prior  deed.* 

§  200.  Innocent  Purchaser  Xot  Charged  With  Notice  of 
Priorities  Except  by  the  Record. —  In  another  case,  which 
seems  to  conflict  with  that  of  Van  Eensselaer  v.  Clark,  the 
land  had  been  mortgaged,  and  before  the  mortgage  was 
recorded  the  mortgagor  conveyed  it  to  another,  and  for  a 
part  of  the  purcliase  money  took  notes  secured  by  a  mort-, 
gage  upon  the  premises  from  a  purchaser  who  had  actual 
notice  of  the  first  mortgage.  This  conveyance  and  the  sec- 
ond mortgage  were  both  recorded  prior  to  the  first.  After 
tlie  first  mortgage  was  recorded,  the  notes  secured  by  the 
second  mortgage  were  transfeiTcd  by  indorsement  to  several 
successive  purchasers  with  notice  of  the  rights  of  prior 
parties,  but  the  last  indorsee  had  no  other  than  constructive 
notice  from  the  record  of  the  first  mortgage.  Prior  to  the 
assignment  of  the  notes,  the  second  mortgagor  conveyed 
his  equity  of  redemption  to  a  purchaser  with  notice.  The 
holder  of  the  notes  was  held  to  be  charged  with  constructive 
notice  of  the  fkst  mortgage,  but  not  Avith  notice  of  the  fact 
that  the  purchaser  from  the  first  mortgagor  took  with  notice 

1  Hendrickson's  Appeal,  24  Penn.  St.,  363. 

2  Van  Eensselaer  v.  Clark,  17  Wend.,  25. 
^  Supra,  §  196. 


CONFLICTING   TITLES.  117 

Oi  the  prior  unregistered  incumbrance,  so  that,  being  an 
innocent  holder,  he  was  allowed  to  foreclose  the  mortgage 
b}^  which  the  notes  were  secured.^ 

§  201.  Order  of  Filing  (xoveriis  Priority. —  Though  it 
be  true  that  generally  a  prior  deed  will  be  postponed  to  a 
subsequent  one  taken  without  notice  when  the  latter  is  first 
.•ecorded,  yet  this  is  only  where  the  subsequent  deed  is  first 
leposited  for  record  by  the  purchaser.  For  the  recording 
akes  effect  by  relation  back  to  the  date  of  filing  for  record. 
\nd  where  two  instruments  affecting  the  title  to  the  same 
and  adversely  to  each  other  are  filed  for  record,  and  the 
last  filed  is  first  spread  upon  the  records  through  the  negU- 
gence  or  corrupt  design  of  the  officer,  no  advantage  will 
thereby  accrue  to  the  grantee  in  the  deed  so  favored.^ 

§  203.  Deed  Recorded  in  Reasonable  Time. —  Where  a 
deed  was  executed  before  the  property  was  attached,  though 
the  attachment  took  place  twenty-four  hours  prior  to  the 
registry  of  the  deed,  it  was  held  that,  as  the  instrument  was 
recorded  in  a  reasonable  time,  it  would  take  precedence  and 
render  the  attachment  void.'' 

§203.  Subsequent  Purchaser  Alone  Affected. —  The 
only  purchasers  who  are  charged  with  notice  by  the  regis- 
tration of  an  instrument  affecting  the  title  to  land  are 
those  who  purchase  subsequent  to  the  deposit  of  the  instru- 
ment with  the  registering  officer.^  The  frequent  announce- 
ment of  the  doctrine  that  the  recording  of  an  instrument 
affecting  the  title  to  land  was  "  notice  to  all  the  world " 
has  at  times  encouraged  the  belief  that  its  operation  might 
be  so  extended  as  to  affect  prior  as  well  as  subsequent  pur- 

iDay  V.  Clark,  25  Vt.,  397. 

■■^■VVarnock  v.  Wightman,  1  Brevard,  339;  Jarves  u.  Aikens,  25  Vt.,  685. 

3Goodsell  V.  Sullivan,  40  Conn.,  83. 

*  Infra;  Hunter  v.  Watson,  12  Cal.,  363;  Howard  Ins.  Co.  v.  Halsey, 
8  N.  Y.,  271 ;  Hill  v.  McCai'ter,  27  N.  J.  Eq.,  41 ;  Van  Orden  v.  Johnson, 
1  McCarter,  876;  Blaii-  v.  Ward,  10  N.  J.  Eq.,  119;  James  v.  Brown,  11 
Mich.,  25;  Cooper  v.  Bigley,  13  id.,  463;  Doolittle  v.  Cook,  75  111.,  854; 
Iglehart  v.  Crane,  42  id.,  261 ;  Denster  v.  McCamus,  14  Wis.,  307 ;  Straight 
V.  Harris,  id.,  509;  Halstead  v.  Bank  of  Kentucky,  4  J.  J.  Marsh.,  554. 


lis  N0TIC1-:    BY    EEGISTK.VTION    OF    INSTRUMENTS. 

cluisei-s  or  mortgagees,  and  tlius  control  tlieu-  action  with 
reference  to  the  property  in  which  they  claimed  an  interest. 
But  neither  the  letter  nor  the  spirit  of  the  recording  acts 
can  be  supposed  to  have  reference  to  prior  deeds  or  mort- 
gages already  recorded.     The  effect  of  recording  a  convey- 
ance is  not  intended  to  be  retrospective.     The  recording  of 
a  mortgage  is  not  constructive  notice  to  a  prior  mortgagee 
whose  mortgage  is  already  recorded.    And  yet  the  courts 
of  equity  have  been  asked,  for  the  purpose  of   granting 
peculiar  I'ehef  to  subsequent  mortgagees,  to  give  such  a 
construction  to  the  statute   as  woidd  entirely  invert  the 
operation  of  its  provisions.    The  propriety  of  this  construc- 
tion has  been  claimed  in  furtherance  of  the  equitable  doc- 
trine that  mortgagees,  where  the  same  mortgage  covers 
several  piarcelg  of  land,  are  required  to  subject  the  mort- 
gaged promises  to  the  payment  of  their  demands  in  the  in- 
verse order  of  their  alienation.  "  Or,  in  other  words,  when 
a  mortgagee,  with  notice  of  the  equitable  rights  of  subse- 
quent purchasers  or  incumbrancers,  releases  one  of  several 
parcels  of  land  mortgaged  for  the  same  debt  of  which  the 
mortgagor  still  holds  the  equity  of  redemption,  unincum- 
bered by  a  subsequent  mortgage,  being  primarily  liable  for 
the  debt,  he  will  not  be  permitted  to  enforce  his  demand 
against  other  parcels  included  in  his  mortgage  which  have 
been  conveyed  or  incumbered  subsequent  to  the  first  mort- 
gage, without  first  deducting  from  his  debt  the  value  of  the 
parcels  released  by  him;  for  the  reason  that  the  release 
would  impose  an  additional  bm^den  upon  that  portion  still 
held.'     But  the  recognition  of  this  doctrine  does  not  carry 
with  it  the  admission  of  the  record  of  the  subsequent  in- 
cumbrance, as  a  substitute  for  the  actual  notice  which  would 
be  necessary  to  affect  the  conscience  of  the  prior  mortgagee 
and  render  his  act  in  releasing  the  portion  of  the  mort- 

1  StujTesant  v.  Hone,  2  Barb.  Ch.,  151 ;  Taylor  v.  Maris'  Ex'rs,  5  Rawlo, 
51;  Cheeseborough  v.  Millard,  1  Johns.  Ch.,  409;  Guion  v.  Knapp,  6 
Paige,  35;  Blair  u.  Ward,  10  N.  J.  Eq.,  119;  Wai-d's  Ex'r  v.  Hague,  25 
N.  J.  Eq.,  397. 


CONFLICTING   TITLES.  "  119 

gaged  premises  primarily  liable,  a  fraud  upo,n  subsequent 
purchasers  or  mortgagees.  He  is  not  required  to  search  the 
record  for  instruments  recorded  subsequently  to  his  own 
which  may  affect  the  title.^  Hence  when  the  owner  of 
premises  conveyed  the  same  by  quitclaim  deed,  which  was 
not  recorded,  and  subsequently,  for  value  received,  conveyed 
the  same  premises  bj'  quitclaim  to  another,  it  was  very 
properly  held  that  the  latter's  deed  had  no  effect  whatever 
on  the  title  of  the  original  grantee.^  A  quitclaim  deed  is 
limited  in  effect  by  its  own  terms  to  the  title  remaining  in 
the  grantor  at  the  time,  and  it  is  quite  clear  that  no  title 
remains  after  it  has  been  conveyed  even  by  a  quitclaim. 

§  204.  Record  of  Quitclaim. —  The  record  of  an  instru- 
ment is  constructive  notice  of  what  the  record  shows,  and 
nothing  more.  So,  where  a  quitclaim  deed  has  been  filed 
for  registration,  and  is  duly  spread  upon  the  records,  this 
amounts  to  notice  simply  that  the  grantor's  interest  in  the 
land  therein  described  was  thereby  conve3'ed  to  the  grantee, 
and  not  that  the  grantor  had  any  title  thereto." 

§  205.  The  Instrument  Must  be  in  the  Chain  of  Title.— 
Nor  wnll  the  putting  on  record  a  deed  from  one  who  had  no 
record  title  affect  the  conscience  of  a  subsequent  purchaser  of 
the  legal  title,  nor  charge  that  title  with  any  equities  w^hich 
the  deed  may  have  raised  between  the  bargainor  and  the  bar- 
gainee.     In  other  words,  the  record  is  only  constructive 

'  Stuyvesant  v.  Houe,  1  Sandf.  Ch.,  419;  Taylor  v.  Maris,  5  Rawle,  51; 
Stuyvesant  v.  Hone,  3  Barb.  Ch.,  151;  Blair  v.  Ward,  10  N.  J.  Eq.,  119; 
George  v.  Wood,  9  AUen,  80;  Howard  Ins.  Co.  v.  Halsey,  8  N.  Y.,  371; 
James  v.  Brown,  11  Mich.,  35;  Bh-nie  v.  Main,  39  Ai'k.,  591;  Flynt  v. 
Arnold,  3  Mete,  619;  Mahoney  r.  IMiddleton,  41  Cal.,  41 ;  Fallas  v.  Pierce, 
30  Wis.,  443;  Sims  v.  Hammond,  33  la.,  368;  Goelet  v.  McManus,  1  Hun, 
306;  Ring  v.  Steele,  3  Keyes,  450;  Schutt  v.  Large,  6  Bai-b.,  373; 
(overruling)  Connecticut  v.  Bradish,  14  Mass.,  396;  Trull  v.  Bigelow, 
16  id.,  406;  GHddon  v.  Himt,  34  Pick.,  331;  Ely  v.  Wilcox,  30  Wis.,  523. 

2 Marshall  v.  Roberts,  18  Minn.,  405;  10  Am.  Rep.,  301. 

3  Hutchinson  v.  Harttman,  15  Kans,,  133;  Stuyvesant  v.  Hone,  1  Sand. 
Ch.,  419. 


120  NOTICE   BY    REGISTKATION   OF   IKSTRUMENTS. 

notice  to  tlioso  claiming  under  the  same  grantor.^  Except 
in  cases  where  the  title  of  such  grantor  is  one  which  has 
ripened  to  perfection  from  adverse  possession.- 

§  206.  Same,  Further  Illustrated.—  The  principle  stated 
above  may  be  further  illustrated  by  a  case  w^here  the  con- 
test was  between  an  attaching  creditor,  and  a  purchaser 
whose  deed  was  recorded  prior  to  the  attachment.  But  the 
rn-antor  of  this  pmxhaser  had  himself  purchased  from  the 
debtor  of  the  attaching  creditor,  and  had  failed  to  file  his 
deed  for  record.  As  a  consequence  of  this  omission  the 
record  disclosed  no  conveyance  from  the  debtor,  and  it  was 
held  that  the  record  of  the  deed  to  the  last  purchaser  did 
not  amount  to  constructive  notice  of  the  um^ecorded  deed 
to  his  grantor." 

§207.  Effect  of  Missing  Link.— So,  where  the  deed 
from  the  vendor  is  not  recorded,  a  deed  of  trust,  or  mort- 
gage given  by  his  vendee  for  the  pm'chase  mone}^,  will  not 
be  notice  to  subsequent  purchasers  of  the  unrecorded  deed. 
There  is  a  break  in  the  chain  of  title.  A  necessary  Unk  is 
wanting  in  order  to  connect  the  mortgagor  with  the  title. 
There  is  nothing  to  guide  the  purchaser  beyond  the  record 

1  Ci-ockett  V.  Maguiie,  10  Mo.,  34;  Roberts  v.  Bourne,  23  Me.,  165; 
Veazie  v.  Parker,  id.,  170;  Pierce  v.  Taylor,  id.,  246;  Leach  v.  Beattie, 
33  Vt.,  195;  Losey  v.  Simpson,  11  N.  J.  (Eq.),  246;  Long  v.  Dollarliide, 
24  Cal.,  218;  Rogers  v.  Burchard,  34  Tex.,  441;  Baker  v.  Griffin,  50 
Miss.,  158. 

a  Baker  v.  Griffin,  50  Miss.,  158;  Embiuy  v.  Conner,  3  Sandf.,  98; 
Farmers'  Loan,  etc.,  Co.  v.  Malt  by,  8  Paige,  361 ;  Cook  v.  Travis,  20  N.  Y., 
402;  St.  John  v.  Conger,  40  lU.,  535;  Brock  v.  Headen,  13  Ala.,  370; 
Dolin  V.  Gardner,  15  Ala.,  758;  Feimo  v.  Sayre,  3  Ala.,  478;  Digman  v. 
McCoUum,  47  Mo.,  372;  McCoy  v.  Trastees,  etc.,  5  S.  &R.,  254;  Tilton 
V.  Hunter,  24  Me.,  29;  Blake  v.  Graham,  6  Ohio  St.,  580;  Leiby  v.  Wolf, 
10  Ohio,  83;  Hctherington  v.  Clark,  30  Penn.  St.,  393;  Bates  v.  Norcross, 
14  Pick.,  224. 

a  George  v.  Wood,  9  Allen,  80;  Felton  v.  Pitman,  14  Ga.,  530;  Chicago 
V.  Witt,  75  111.,  211;  Page  v.  Waring,  76  N.  Y.,  463;  Calder  v.  Chapman, 
52  Pa.  St.,  359;  Keller  v.  Nutz,  5  S.  &  R.,  246;  Blake  v.  Graham,  6  Ohio 
St.,  580;  Harris  v.  Arnold,  1  R.  I.,  125;  Roberts  v.  Bourne,  23  Me.,  165. 


CONFLICTINa   TITLES.  121 

title  of  the  vendor,  and  the  discovery  of  the  mortgage  for 
the  purchase  money  would  be  purely  accidental.^ 

§  208.  Record  Imparts  No  Notice  of  Relations  Between 
Parties. —  The  constructive  notice  by  registration  does  not 
necessarily  imply  knowledge,  on  the  part  of  subsequent  pur- 
chasers, of  the  relations  subsisting  between  the  parties  to 
the  recorded  instrument.  So,  where  a  mortgage  was  given 
by  A.  and  B.  on  .several  pieces  of  land  owned  by  them  in 
severalty,  to  secure  their  joint  note,  which  was  executed  by 
B.  as  surety  for  A.,  and  subsequently  A.  gave  a  second  mort- 
gage on  his  land,  and  B.,  by  reason  of  his  being  sm*ety  for 
A.,  claimed  that  he  was  entitled  to  pay  off  the  first  mortgage, 
and  be  subrogated  to  all  the  rights  of  the  first  mortgagee  for 
his  indemnity,  thereby  taking  precedence  of  the  second 
mortgagee,  it  was  held  that,  as  the  record  imparted  no 
constructive  notice  of  his  suretyship,  and  actual  notice 
thereof  was  not  proven,  innocent  purchasers  or  incum- 
brancers could  not  be  affected.- 

§  209.  Recitals  of  Material  Facts  Held  Not  to  Ibe  No- 
tice.—  It  has  even  been  held  that  the  record  is  not  always 
constructive  notice  of  all  it  contains  material  to  the  title. 
As  where  there  was  a  recital  in  the  body  of  a  deed,  which 

1  Veazie  v.  Parker,  23  Me.,  170;  Pierce  v.  Tayor,  id.,  246;  Felton  ?;. 
Pitman,  14  Ga. ,  530 ;  De  Yampert  v.  Brown,  28  Ark. ,  166 ;  Bazeniore  v. 
Davis,  55  Ga.,  504;  Whittington  v.  Wright,  9  Ga.,  23;  Crockett  v.  Ma- 
guii-e,  10  Mo.,  34;  Rogers  v.  Burchard,  34  Tex.,  441 ;  Losey  v.  Simpson,  11 
N.  J.  Eq.,  246;  Bates  v.  Norcross,  14  Pick.,  224;  Quirk  >!;.  Thomas,  6 
Mich.,  76. 

2 Bancrofts.  Cousen,  13  Allen,  50;  Harrison  v.  Cachelin,  23  Mo.,  117; 
George  v.  Kent,  7  Allen,  16;  Morris  v.  Wadsworth,  17  Wend.,  103; 
Dimon  v.  Dunn,  15  N.  Y.,  498;  Humphreys  v.  Ne-RTnan,  51  Me.,  40; 
Thomson  v.  Wilcox,  7  Lans.,  376;  HaU  v.  McDuff,  24  Me.,  311 ;  Bai-bour 
V.  Nichols,  3  Pt.  I,,  187;  BoUes  v.  Chauncey,  8  Conn.,  389;  Peters  v. 
Goodrich,  3  Conn.,  146;  Tripe  v.  Marcy,  39  N.  H.,  439;  Souder  i7.  Mor- 
row, 33  Pa.  St.,  83;  Leach  v.  Beattie,  33  Vt.,  195;  Clabaugh  v.  Byerly, 
7  Gill,  354;  Kyle  V.  Thompson,  11  Ohio  St.,  610;  Grandin  v.  Anderson, 
15  Ohio  St.,  286;  Doyle  v.  Stevens,  4  Mich.,  87;  Buchanan  v.  Interna- 
tional Bank,  78  111.,  500 ;  McCabe  v.  Grey,  20  Cal.,  509 ;  Demiis  v.  Burritt, 
6  Cal.,  670;  Montefiore  v.  Browne,  7  H.  L.  Cas.,  241;  Orvis  v.  NeweU,  17 
Conn.,  97. 


122  KOTICE   BY   EEGISTEATION   OF   INSTEUMENTS. 

disclosed  the  fact  that  a  ])rior  mortgage  had  been  given  on 
the  same  premises,  and  such  mortgage  was  unrecorded,  the 
recital  was  not  treated  as  constructive  notice  to  subsequent 
purchasers,  of  the  existence  of  the  mortgage.^ 

g  '210.  Example  of  Brolven  Chain  of  Title. —  In  a  recent 
case,  where  there  was  an  outstanding  unrecorded  deed  of  the 
premises  and  a  deed  duly  recorded  from  the  grantee  to  an- 
other person,  and  also  a  deed  from  this  other  person  to  still 
another,  which  last  was  likewise  recorded,  it  was  sought  to 
charge  an  innocent  purchaser,  by  the  record  of  these  two 
deeds,  with  constructive  notice  of  the  prior  unrecorded  deed. 
From  the  report  of  the  case  it  seems  that  before  completing 
the  transaction,  the  purchaser  sought  to  be  charged  ob- 
tained an  abstract  of  the  title,  in  which  both  these  convey- 
ances, the  one  from  the  grantee  in  the  unrecorded  deed  and 
that  from  his  grantee,  were  mentioned.  It  further  appears 
that  in  neither  of  these  was  there  any  recital  of  the  unre- 
corded instrument  which  formed  a  necessary  link  in  the  chain 
of  title.  It  was  held  that  the  conveyance  appearing  of 
record  did  not  operate  as  constructive  notice  of  the  um^e- 
corded  instrument  under  which  they  both  held;  but  in 
reaching  this  conclusion  the  court  intimated  that  the  case 
might  have  been  differently  decided  had  there  been  a  re- 
cital of  the  unrecorded  instrument  in  those  appearing  of 
record.-  It  is  impossible  to  gather  from  the  report  of  the 
case  cited  whether  or  not  the  fact  that  the  purchaser  had 
been  furnished  with  an  abstract  of  the  title  was  insisted 
upon  as  actual  notice.  What  seems  to  have  been  in  dis- 
pute, however,  was  whetlier  the  record  of  the  deeds  from 
parties  who,  for  all  that  appeared  of  record,  were  strangers 
to  the  title,  was  constructive  notice  of  the  unrecorded  deed. 
In  cases  where  this  issue  alone  has  been  raised,  it  has  been 
almost  uniformly  decided  that  even  the  recitals  in  detached 
instruments,  however  explicitly  they  may  refer  to  prior  un- 
recorded instruments  affecting  the  title,  wiU  not  charge 

» Crofut  V.  Wood,  3  Hun,  571.     Seo  S.  C,  65  N.  Y.,  437. 

2  Chicago  1-.  Witt,  75  lU.,  211.     See,  also,  DooUttle  v.  Cook,  id.,  354. 


CONFLICTING  TITLES.  123 

subsequent  purchasers  with  constructive  notice  of  the  facts 
therein  recited.^ 

§211.  Example  of  Contrary  Doctrine.—  The  views  ex- 
pressed by  the  court  in  a  still  more  recent  case  seem  to  be 
directly  at  variance  with  the  weight  of  authority  upon  this 
question.-  The  controversy  lay  between  the  plaintiff  claim- 
ing by  adverse  possession,  under  color  of  title,  and  defend- 
ant, a  purchaser  at  an  execution  sale.  The  plaintiff  held  a 
deed,  duly  aclmowledged  and  recorded,  from  a  purchaser 
at  a  prior  execution  sale.  In  attempting  to  execute  the 
deed  to  the  first  purchaser  the  sheriff  omitted  to  affix  the 
seal  or  scroll,  which  was  imperatively  required  to  give 
validity  to  the  deed.  This  omission  the  court  declared 
rendered  the  deed  a  nullity.*  And  being  an  attempted  ex- 
ecution of  a  statutory  power  in  derogation  of  a  common 
law  right,  equity  would  not  aid  its  imperfect  execution.* 
It  was  not  the  conveyance  of  an  equitable  interest,  as  it 
would  have  been  had  the  deed  been  a  voluntary  one,  and 
the  seal  omitted  by  mistake.^  This  void  deed,  however, 
was  copied  upon  the  records  before  the  purchase  bj"  the 
defendant,  as  was  also  the  deed  from  plaintiff's  grantor. 
It  is  not  clear  from  the  report  of  the  case  whether  the  de- 
fendant, prior  to  his  purchase,  had  ever  seen  the  record 
copy  of  the  sheriff's  deed ;  but  the  court  held  that,  as  the 
deed  to  plaintiff  recited  the  former  judgment,  execution 
and  sale,  described  the  land  correctly,  and  stated  that  the 
first  sheriff's  deed  was  executed,  it  was  sufficient  to  put  de- 
fendant upon  inquiry,  which  would  have  resulted  in  a 
knowledge  of  plaintiff's  claim,  and  was  consequently  con- 
structive notice  to  him. 

iLosey  v.  Simpson,  11  N.  J.  Eq.,  346;  Keller  v.  Nutz,  5  S.  &  E.',  24G; 
Maiil  V.  Rider,  59  Penn.  St.,  167;  Long  v.  DoUarhide,  24  Cal.,  318;  Fenno 
V.  Sayre,  3  Ala.,  458;  Tilton  v.  Hunter,  34  Me.,  39;  Ely  v.  Wilcox,  30 
Wis.,  530. 

2 Hamilton  v.  Boggess,  63  Mo.,  233. 

3  Allen  t7.  Moss,  37  Mo.,  354. 

*  Moreau  v.  Detcliemendy ,  18  Mo. ,  533 ;  Moreau  v.  BraiJiam,  37  Mo. ,  851 . 

SMcClurg  V.  Phillips,  57  Mo.,  314. 


124:  NOTICE   BY    EEGISTEATION   OF   INSTEUMENTS. 

§  212.  Tlie  Above  Criticised. —  The  views  expressed  by 
the  court  in  this  case  seem  irreconcilable  with  those  previ- 
ously expressed  by  the  siune  and  other  courts,  upon  any 
other  hypothesis  than  that  defendant  had  actual  notice  of 
the  record.  The  case  might  have  been  decided  by  leaving 
entirely  out  of  consideration  the  cpiestion  of  constructive 
notice  by  registration,  and  resting  upon  plaintiff's  adverse 
possession,  which  seems,  from  the  instruction  reported,  to 
liave  been  the  view  taken  by  the  court  beloAV.  If  it  is  true, 
as  we  have  seen,  that  the  record  is  only  constructive  notice 
to  those  claiming  to  purchase  under  the  same  grantor,^  the 
record  of  the  plaintiff's  deed  could  not  have  been  construct- 
ive notice  to  one  pm^chasing  at  the  last  execution  sale,  be- 
cause it  was  from  one  who,  so  far  as  the  record  disclosed, 
was  a  stranger  to  the  title.  Neither  its  recitals  nor  the  un- 
authorized record  of  the  void  sheriff's  deed,  nor  both  these 
together,  could  connect  the  plaintiff's  deed  with  the  title  of 
the  judgment  debtor  under  whom  the  defendant  claimed. 
The  deed  from  the  purchaser  at  the  first  execution  sale  was 
properly  recorded,  it  is  true ;  but  bet^v^een  it  and  the  title 
of  the  judgment  debtor  there  was  a  blank.  In  order  to 
make  the  record  of  its  recitals  constructive  notice,  the  same 
operation  must  be  given  to  the  record  of  the  void  deed  as 
to  a  valid  one,  or  else  there  is  nothing  to  lead  the  searcher 
of  the  records  to  a  knowledge  of  the  fact  by  which  he  is  to 
be  bound. 

§  213.  Slieriif's  Deed  from  Apparent  Stranger. —  The 
record  of  a  deed  from  a  sheriff,  pursuant  to  an  execution 
sale,  wiU  not  be  notice  to  a  subsequent  purchaser,  when  the 
title  acquired  by  such  subsequent  purchase  is  derived  from 
a  different  source,  and  there  is  nothing  appearing  of  record 
connecting  the  execution  debtor  Avith  tlie  title.  As,  where 
certain  land  was  paid  for  with  the  money  of  a  judgment 
debtor,  and  at  his  request  conveyed  to  another,  in  trust  for 
his  wife,  for  the  purpose  of  defrauding  his  creditors,  and 

1  Supra,  §  205  et  seq. ;  infra,  §  213. 


CONFLICTING   TITLES.  125 

tlie  land  was  sold  on  execution  against  the  husband,  and 
subsequently  purchased  from  the  trustee  and  the  wife  by 
one  having  no  actual  notice  of  the  equity  of  the  husband 
or  of  the  sheriif's  sale,  the  record  of  the  deed  from  the 
sheriff  would  not  charge  such  subsequent  purchaser  with 
constructive  notice  of  anything  by  which  his  title  might  be 
affected.^ 

§  214.  Record  of  Conveyance  Anterior  to  Grantor's 
Title. —  The  purchaser  is  not  charged  with  notice  from  the 
record  of  conveyances  from  his  grantor  prior  to  such 
grantor's  acquisition  of  title.^  In  such  case  the  subsequent 
purchaser  would  not  be  estopped  by  the  record  of  a  mort- 
gage from  his  grantor  prior  to  the  date  of  his  grantor's 
deed.  To  hold  otherwise  would  be  to  impose  upon  the 
purchaser  the  duty  of  examining  the  records  indefinitely.^ 

§215.  Illnstration  of  Same. —  So,  in  a  case  where  a, 
tract  of  land  was  conveyed  by  deed  to  A.,  with  the  excep- 
tion of  a  certain  lot  included  in  the  general  boundaries,  and 
the  deed  was  duly  recorded,  after  which  A.  mortgaged  the 
entire  tract  to  B,,  this  mortgage  was  also  placed  upon 
record.  Subsequently  A.  purchased  the  lot.  C.  held  a 
judgment  against  A.  The  entire  tract  was  sold  to  satisfy 
the  mortgage  claim,  and  the  lot  was  sold  to  satisfy  the 
judgment.  In  a  contest  between  the  purchaser  at  the 
mortgage  said  and  the  purchaser  at  the  execution  sale,  it 
was  held  that  the  latter  by  his  purchase  acquired  the  better 
title  to  the  lot.     He  Avas  only  constructively  notified  by  the 

1  Crockett  v.  Maguii-e,  10  Mo.,  34. 

2  Loan  &  Trust  Co.  v.  Maltby,  8  Paige,  361 ;  Faircloth  v.  Jordon,  18 
Ga.,  850. 

SHetzel  v.  Barber,  69  N.  Y.,  1;  Buckingham  v.  Hanna,  2  Oliio  St., 
551 ;  Doswell  v.  Buchanan,  3  Leigh,  365.  But  see  Pike  v.  Galvin,  29  Me., 
183;  Wark  v.  WiUard,  13  N.  H.,  389;  KimbaU  v.  Blaisdell,  5  N.  H.,  533; 
Jarves  V.  Aikens,  25  Vt.,  635;  White  v.  Patten,  24  Pick.,  324;  Somes  r. 
Skinner,  3  Pick.,  52;  Doyle  v.  Peerless,  etc.,  Co.,  44  Barb.,  239;  Digmau 
V.  McCollum,  47  Mo.,  372;  Duchess  of  Kingston's  Case,  3  Smith's  Lead. 
Cases  (7th  Am.  ed.),  705. 


12G  NOTICE   BY   REGISTRATION    OF    INSTRUMENTS. 

record  of  incumbrances  placed  n]ion  the  lot  by  the  judg- 
ment debtor  subsequent  to  his  acquisition  of  title.^ 

§  2 1 6.  Contrary  Doctrine  Criticised. —  The  doctrine  of 
estoppel  l)y  deed  was  applied  to  a  case  similar  to  the  fore- 
troin"-,  and  it  was  held  by  a  divided  commission  that  the 
record  of  a  mortgage,  prior  to  the  purchase  of  the  premises 
bv  the  mortgagor,  was-  binding  upon  privies  in  blood,  priv- 
ies in  estate,  and  privies  in  law,  after  the  title  was  acquired 
by  tlie  mortgagor.-  But  upon  both  principle  and  autliority, 
it  seems  more  consonant  with  the  spirit  of  the  recording 
acts  to  absolve  purchasers  from  the  duty  of  examining  the 
records  for  conveyances  from  their  grantors,  prior  to  thc^ 
time  when  they  had  a  title  to  conve3^ 

§  217.  Purcliaser  from  Heir  Without  Notice  of  An- 
cestor's Unrecorded  Deed. —  "Where  the  grantor  of  real 
estate  dies,  and  the  deed  is  not  recorded,  it  lias  been  held 
that  a  subsequent  purchaser  from  the  heir  for  a  valuable 
consideration,  and  without  notice  of  the  unrecorded  deed, 
would  be  protected  to  the  same  extent  as  though  he  had 
purchased  from  the  ancestor  under  similar  circumstances.^ 

§  218.  Reasons  Assigned  for  the  Eule. —  The  following 
are  the  principal  reasons  assigned  for  thus  holding:  The 
heir  stands  in  the  shoes  of  his  ancestor.  The  title  to  the 
real  estate  descends  to  him  immediate!}"  on  the  death  of 
the  ancestor.  When  the  purchaser  ascertains  who  is  the 
sole  heir,  he  would  ordinarily  be  walling  to  treat  with  him 
much  as  he  would  have  treated  with  the  ancestor  in  his 

'  Cakler  v.  Chapman,  53  Penn.  St.,  359. 

2Tefft  V.  Munson,  57  N.  Y.,  97,  citing  upon  the  general  doctrine  of 
estoppel  by  deed  against  mortgagor,  Wark  v.  Willard,  13  N.  H.,  389; 
Kimball  v.  BlaisdeU,  5  id.,  533;  Somes  v.  Skinner,  3  Pick.,  52;  Baulc  of 
Utica  V.  Mersereaii,  3  Barb.  Ch.,  538;  Jackson  v.  Bull,  1  Johns.  Cas.,  81; 
White  V.  Patten,  24  Pick.,  324;  Pike  v.  Galvin,  29  Me.,  183. 

SMcCulloch  V.  Eudaly,  3  Yerg.,  346;  Powers  v.  McFerran,  2  Serg.  & 
Rawle,  44;  Kenedy  u.  Northup,  15  111.,  148;  Kupert  v.  Mark,  id.,  540; 
Youngblood  v.  Vastine,  46  Mo.,  239;  Chad  wick  v.  Tui-ner,  1  Ch.  Ap. 
Cos.,  310. 


CONFLICTING   TITLES.  127 

life-time.  It.  is  true  that  the  heir  coiild  not  hold  the  prop- 
ert}^  as  against  his  ancestor's  grantee  whose  deed  was  un- 
registered. In  this  respect  he  is  in  neither  a  better  nor  a 
worse  condition  than  his  ancestor  while  living.  If  the  real 
estate  of  which  one  dies  apparently  seized  is  to  remain 
forever  subject  to  unrecorded  instruments  affecting  the 
title,  the  benefit  to  be  derived  from  the  registry  laws  is 
utterly  lost  as  soon  as  the  title  is  cast  by  descent.  If  one 
hold  a  deed  to  land  which  is  unregistered  at  the  death  of 
his  grantor,  unless  subsequent  purchasers  from  the  heir  are 
protected,  the  same  as  subsequent  purchasers  from  the 
ancestor,  it  need  never  be  registered,  in  order  to  protect  the 
grantee's  title.  It  is  believed  that  it  was  never  intended  by 
any  of  the  recording  acts,  that  the  death  of  a  grantor 
should  be  allowed  to  create  a  break  in  the  chain  of  title,  as 
it  appeared  of  record,  and  protect  the  grantee  whose  deed 
was  unregistered  against  subsequent  purchasers  without  no- 
tice. The  onl}^  question  is,  whether  a  contrary  intention  is 
sufficiently  expressed  in  the  statute. 

§  219.  Reason  Assigned  for  Contrary  Doctrine. —  It 
has  been  held  that  the  grantee  of  the  heir  will  not  be  pro- 
tected in  his  title  against  the  claim  of  the  ancestor's  grantee 
or  mortgagee  whose  deed  or  mortgage  is  unrecorded,  be- 
cause the  language  of  the  statute  does  not  warrant  such  an 
interpretation.'  Though  it  is  admitted  that  a  purchaser  at 
administrator's  sale,  who  has  his  deed  first  recorded,  will  be 
protected  against  claims  under  prior  imregistered  instru- 
ments, it  is  said  the  heir  has  nothing  to  convey.^ 

§  220.  The  Rnle  Snstained  on  Principle. —  The  lan- 
guage of  the  statute  usually  is  in  substance  that  no  instru- 
ment affecting  the  title  to  real  estate  shall  be  effectual  as 
against  any  persons  except  grantors,  and  their  heirs,  unless 

1  Webb  V.  Wilcher,  33  Ga.,  565 ;  HiU  v.  Meeker,  24  Conn.,  211 ;  Ralls  v. 
Graham,  4  Mon.,  120;  Hancock  v.  Beverly,  6  B.  Mon.,  531;  Harlan  v. 
Seaton,  18  id.,  312. 

-Tucker  v.  Harris,  13  Ga.,  1 ;  Caldwell  v.  Head,  17  Mo.,  561 ;  McCam- 
ant  V.  Patterson,  39  id.,  100;  Gibson  v.  Choteau,  id.,  536. 


128  NOTICE   BY    REGISTRATION   OF   INSTRIIMENTS. 

recorded  in  the  maimer  prescribed.  It  is  argued  in  tliose 
cases  where  protection  is  denied  to  innocent  purchasers 
from  heirs,  that  the  title  passes  by  the  execution  and  deliv- 
ery of  the  deed  and  not  by  its  registration ;  therefore,  the 
ancestor  having  divested  himself  of  all  title  to  the  premises 
during  his  life-time,  at  his  death  nothing  descended  to  the 
heir  which  he  could  convey.  By  the  same  rule  no  title 
remained  in  the  ancestor  which  he  could  convey ;  yet  if  ho 
attempted  it,  the  subsequent  innocent  purchaser,  by  the 
exercise  of  proper  diligence  in  filing  his  deed  for  record, 
could  secure  the  title. 

§  221.  Review  of  Authorities. —  In  the  case  of  Harlan  r. 
Seaton,'  the  court  does  not  attempt  a  vigorous  defense,  upon 
principle,  of  the  position  assumed,  but  virtually  yields  to 
the  doctrine  of  stare  decisis.  Early  decisions  of  the  same 
question  by  the  same  court  are  followed,  for  the  declared 
reason  that  they  have  established  a  ride  of  property  in  that 
state,  and  it  is  deemed  better  that  the  law  should  remain 
permanent,  even  though  originally  settled  upon  doubtful 
principles. 

§  222.  Weightof  Authority  and  Governing  Principle.— 
As  between  these  conflicting  views,  the  weight  of  authority 
seems  to  be  in  favor  of  extending  the  same  protection  to 
lona  fide  purchasers  from  the  heirs  of  a  deceased  grantor, 
where  the  prior  deed  is  unregistered,  as  is  afforded  to  subse- 
quent purchasers  from  the  grantor  himself.  This  view 
seems  also  to  be  supported  by  the  better  reason.  Following 
the  record  as  a  guide,  the  title  seems  to  be  in  the  heir  at  the 
moment  of  the  ancestor's  death.  It  is  true  that,  as  against 
his  ancestor's  grantee,  he  has  no  title  at  all ;  but  the  same 
could  be  said  with  equal  truth  of  the  grantor  himself  where 
the  subsequent  deed  is  from  him.  It  is  probable,  however, 
that  the  courts  of  each  state  where  the  question  has  been 
once  decided  will  generally  adhere  to  its  own  construction 
of  the  statute,  as  best  calculated  to  insure  permanency  in 
the  laws  governing  property — though  the  case  of  Toung- 
1  Swpra,  §219. 


CONFLICTING   TITLES.  129 

blood  V.  Yastine/  being  the  latest  decision  of  the  court 
where  it  was  decided,  flatly  overrules  the  earlier  cases 
cited  2  in  which  a  contrary  view  is  expressed  by  the  same 
court. 

§  223.  Record  of  Conveyances  Between  Strangers  Does 
Not  Affect  Purchasers. —  The  record  of  a  conveyance  from 
one  stranger  to  the  title,  to  another,  does  not  affect  a  subse- 
quent purchaser  who  claims  under  a  different  grantor.'  A 
fair  illustration  of  this  doctrine  is  found  in  the  case  of  Blake 
V.  Graham.*  In  that  case  there  had  been  an  unauthorized 
deed  executed  by  an  executor  in  Pennsylvania,  of  lands  in 
Ohio,  which  deed  was  recorded  in  Ohio ;  but  it  was  held  to 
be  of  no  avail  as  notice  to  purchasers  from  the  heirs  of  the 
testator.^ 

§  224.  Effect  of  Record  of  Instruments  Affecting  Chat- 
tels Follows  Property. —  Ante-nuptial  contracts  of  such  a 
nature  as  to  be  binding  upon  the  parties,  affecting  the  title 
to  chattels,  when  properly  acknowledged  and  recorded  in 
the  state  where  the  property  is  situated  at  the  time,  have 
been  held  to  follow  the  chattels  when  removed  to  another 
state,  and  operate  as  constructive  notice  in  the  new  locality.^ 
So  where  personal  property  is  mortgaged  in  one  state  ac- 
cording to  the  laws  thereof,  and  duly  recorded,  the  rights 
of  the  mortgagee  are  preserved  after  the  removal  of  the 
property  to  another  state.^ 

§  225.  Time  Given  for  the  Registration  of  Deeds. — 
Where  the  statute  prescribes  a  time  within  which  the  deed 
to  be  operative  as  notice  to  subsequent  pm^chasers  shall  be 

146  Mo.,  239. 

2  Caldwell  v.  Head,  and  McCamant  v.  Patterson,  supra,  §  219. 

3 McCoy  V.  Trustees,  etc.,  5  S.  &  R.,  254;  Tilton  v.  Hunter,  24  Me.,  29; 
Leiby  v.  Wolf,  10  Ohio,  83;  Hetherington  v.  Clai'k,  30  Penn.  St.,  893; 
Bates  V.  Norcross,  14  Pick. ,  224. 

*6  Ohio  St.,  580. 

5 Leiby  v.  Wolf,  10  Ohio,  83;  Hetherington  v.  Clark,  30  Penn.  St.,  893; 
Bates  V.  Norcross,  14  Pick.,  224. 

6DeLane  v.  Moore,  14  How.,  253;  Hicks  v.  Skinner  71  N.  C,  639. 

'Hall  V.  PiUow,  31  Ark.,  33;  Feurt  v.  RoweU,  63  Mo.,  634. 
9 


130  NOTICE    UY    KEGISTKATION    OF    INSTRUMENTS. 

jQled  for  record,  it  is  given  a  retrospective  effect  from  the 
date  of  filing  (if  within  the  prescribed  time)  back  to  the 
date  of  the  deed,  and  is  held  to  take  precedence  of  instru- 
ments of  subsequent  date,  even  though  the  latter  be  li^'st 
Hied  for  record.  The  same  advantage,  however,  is  not 
always  accorded  to  mortgages  and  deeds  of  trust,  as  these 
are  held  to  be  constructive  notice  only  from  the  time  they 
are  lodged  with  the  proper  officer  for  registration.^  "Where 
a  time  is  fixed  for  recording  instruments,  and  they  are 
not  recorded  until  after  the  expiration  of  the  statutory 
period,  they  are  generally  held  to  be  notice  to  purchasers 
and  incumbrancers  subsequent  to  their  being  filed  for  rec- 
ord.2 

§  226.  Must  be  Purchaser  for  Yalue. —  It  is  not  every 
one  who  may  be  technically  styled  a  subsequent  purchaser 
that  Avill  be  allowed  to  take  advantage  of  the  fact  that  a 
prior  deed  to  the  same  premises  is  unregistered.  It  is  not 
suiiicient  that  he  is  a  purchaser  without  notice.  He  must 
also  be  a  purchaser  who  has  parted  with  value.^  But  the 
record  of  a  voluntary  conveyance  will  be  as  effective  for 

1  Claiborne  v.  HoLnes,  51  Miss.,  146;  StanseU  v.  Eoberts,  13  Ohio,  148; 
Mayhaan  v.  Coombs,  14  id.,  428:  Coster  v.  Bank  of  Georgia,  24  Ala.,  37; 
De  Vandal  v.  Malone,  25  Ala.,  272;  Gray's  Adm'r  v.  Cmise,  36  Ala.,  559. 

2Hardaway  v.  Semmes,  24  Ga.,  305;  Doe  v.  Bank  of  Cleveland,  3 
McLean,  140;  Williams  v.  Adams,  43  Ga.,  407;  Allen f.  Holding,  29  Ga., 
485;  Rushim  v.  Shields,  11  Ga.,  636;  Bm-khalter  v.  Ector,  25  Ga.,  55; 
WiUiams  u.  Logan,  32  Ga.,  165;  Lee  v.  Cato,  27  Ga.,  637;  Wyatt  v.  Elam, 
19  Ga.,  335;  Smith  v.  Smith,  13  Ohio  St.,  532;  Lessee  of  AUen  v.  Pai'ish, 
3  Oliio,  107 ;  Lessee  of  Cunningham  v.  Buckingham,  1  Oliio,  264 ;  Lessee 
of  Irvin  v.  Smith,  17  Ohio,  226 ;  Northnip's  Lessee  v.  Brehmer,  8  Ohio, 
392;  Spader  v.  Lawler,  17  Olaio,  371;  Bloom  v.  Noggle,  4  Oliio  St.,  45; 
Price  V.  Methodist  Episcopal  Ch.,  4  Ohio,  515;  Bercaw  v.  CockeriU,  20 
Ohio  St.,  163;  Owens  r.  Miller,  29  Md.,  144;  Knell  v.  Building  Ass'n,  34 
Md.,  67;  Leppoc  v.  Nat.  Union  Banlc,  32  Md.,  136;  Lester  v.  Hardesty,  29 
Md.,  50;  Adm'rs  of  Carson  v.  Phelps,  40  Md.,  97;  Estate  of  Leiman,  32 
Md.,  225. 

3  Aubuchon  v.  Bender,  44  Mo.,  560;  Setter  v.  Alvey,  15  Kans.,  157; 
Martmr.  Sale,  1  BaUey's  Eq.,  1;  Hoffman  v.  Strohecker,  7  Watts,  90; 
Snider  u.  Snider,  8  Phila.,  160;  Union  Canal  Co.  v.  Young,  1  Whart., 
432. 


CONFLICTING    TITLES.  131 

the   purpose    of    giving  notice  to   subsequent   parties,  as 
tTiougli  it  were  for  a  valuable  consideration.^ 

§  227.  Assignee  for  Benefit  of  Creditor. —  In  thus  re- 
stricting the  operation  of  the  statute,  it  has  been  held  that 
an  assignee  for  the  benefit  of  creditors  is  not  a  purchaser 
for  value,  and  therefore  such  an  assignment  would  be  post- 
poned to  a  prior  unrecorded  mortgage.^ 

§  228.  Creditor  Purchasing  at  Execution  Sale. — And 
so  where,  at  an  execution  sale,  the  creditor  was  the  pur- 
chaser, and  the  amount  for  which  the  purchase  was  made 
was  credited  on  his  judgment,  it  was  held  that  he  was  not 
a  purchaser  for  a  valuable  consideration,  and  was  not  en- 
titled to  the  protection  of  the  registry  laws.* 
'  §  229.  Purchasers  at  Execution  Sale  Notified  by 
Begistry  Prior  to  Sale. —  But  whoever  is  the  purchaser  at 
execution  sale,  whether  he  be  a  creditor  or  not,  is  charged 
with  constructive  notice  of  all  instruments  affectino:  the 
title,  executed  and  delivered  by  the  debtor  prior  to  the  judg- 
ment, and  subsequently  recorded,  provided  such  instruments 
are  recorded  prior  to  the  sale.* 

§  230.  Interest  of  Mortgagee  Not  Affected  by  Bidding 
at  Execution  Sale.— So  it  has  been  held  that  where  a 
mortgagee  whose  mortgage  had  been  registered  prior  to 
the  execution  sale,  but  subsequently  to  the  docketing  of  the 
judgment,  attended  and.  bid  at  the  sale,  his  interest  was  not 
affected  by  such  silence  or  apparent  acquiescence,  though 
had  the  mortgage  remained  unrecorded  until  after  the  sale, 
the  purchaser,  if  without  notice,  would  have  taken  the 
property  freed  from  the  incumbrance.^ 

iBeal  V.  Warren,  2  Gray,  447.  See  Mayor  v.  Williams,  6  Md.,  235; 
Cooke's  Lessee  v.  Kell,  13  Md.,  469 ;  Williams  v.  Bank,  11  Md.,  198 ;  supra, 
%  118. 

2 Mellon's  Appeal,  32  Penn.  St.,  121 ;  Britton's  Appeal,  45  Penn.  St.,  172. 

3  Ayers  v.  Duprey,  27  Tex.,  593.  In  general  a  pm-chaser  at  an  execu- 
tion sale  is  affected  with  notice  of  all  the  infirmities  in  the  title  of  the 
judgment  debtor.     Richardson  v.  Wicker,  74  N.  C,  278. 

*  Thomas  v.  Kennedy,  24  la.,  397;  Jackson  v.  Post,  15  Wend.,  588. 

5  Jackson  v.  Dubois,  4  Johns,,  216;  Knouff  v.  Thompson,  10  Penn. 
St.,  57. 


132  NOTICE   BY   KEGISTKATION   OF   INSTRUMENTS. 

YII.  Other  Notice  Considered  m  Connection  with  Eech 

ISTRATION. 

§  231.  Actual  Notice  of  Unregistered  Deed. 

232.  Purchaser  Protected  by  Good  Faith  of  Execution  Creditor. 

233.  Equitable  Interference  in  Favor  of  Holder  of  Unrecorded  Title. 

234.  Creditor's  Interest  Held  to  Attach  from  Date  of  Levy, 

235.  Unregistered  Deeds  Good  Against  Creditoi-s  With  Notice. 

236.  Notice  of  Deed  Must  be  Subsequent  to  Its  Execution. 

237.  Notice  of  Assignment  Governed  by  Same  Principle. 

238.  Judgments  Given  Precedence  Over  Prior  Deeds. 

239.  Deed  Takes  Priority  if  Registered  Before  Execution  Sale. 

240.  Judgments  Do  Not  Become  Liens  After  Conveyance  and  Before 

Registry. 

241.  Title  Not  Affected  by  Recording  Deed  After  Title  Vests  in  Inno- 

cent Purchaser. 

242.  Reasons  for  the  Above  Doctrine. 

243.  Effect  of  Re-i3urchase  by  Fi-audulent  Grantor, 

244.  Conflicting  Decisions  as   to  Sufficient  Notice  of  Unregistered 

Deed. 

245.  Express  Notice  Reqvured. 

246.  Actual  or  Constructive. 

247.  Different  Kinds  of  Notice  Referred  to. 

248.  Cases  Holding  Notice  Ineffectual  Against  the  Record. 

249.  Cases  Holding  Implied  Notice  Sufficient. 

250.  Illustration  of  Implied  Notice. 

251.  Any  Kind  of  Notice  Will  Affect  Purchasers. 

252.  Putting  Upon  Inquiry  Held  Insufficient. 

253.  Kjiowledge  of  Mortgage  Withheld  from  Record. 

254.  Record  of  Insti'ument  Affectmg  Equitable  Interest. 

255.  Effect  of  Withdi-awing  Deed  from  Files  Before  Recording, 

256.  Priority  Secured  by  Registration. 

257.  Fraud  Practiced  by  Agent. 

258.  Vague  Information  Disregarded. 

259.  Subsequent  Purchase  Not  Invalidated  by  Notice  of  Prior  Deed. 

260.  Same  —  Doubtful  Authority. 

261.  Record  Chain  of  Title  Incomplete. 

262.  Assignee  of  a  Mortgage  Regarded  as  Purchaser. 

263.  Time  of  Notice. 

264.  Same,  to  Attaching  Creditor. 

265.  When  Notice  Too  Late. 

266.  After  Purchase  at  Execution  Sale. 

267.  Before  Legal  Title  is  Conveyed. 

268.  Time  of  Filing  for  Record  Fixed  by  Statute. 


OTHEK   NOTICE   CONSIDEKED.  133 

§  269.  Recording  After  Death  of  Grantor. 

270.  Examining  Eecords  Insufficient  Inquiry. 

271.  Unrecorded  Chattel  Mortgage. 

272.  Description  of  Debt  in  Mortgage. 

§  231.  Actual  Notice  of  Unregistered  Deed. —  Actual 
notice  of  an  unregistered  deed  will  be  as  effectual  as  the 
formal  registration  of  the  instrument.^  But  this  actual  no- 
tice must  be  brought  home  to  the  party  to  be  affected  by  it. 
The  fact  that  one  of  two  partners,  judgment  creditors,  had 
seen  a  deed  from  the  debtor,  who  had  been  allowed  to  re- 
main in  possession  of  the  premises  for  two  years,  and  the 
deed  had  remained  unrecorded  for  that  time,  was  not 
deemed  such  notice,  or  evidence  of  notice,  as  would  entitle 
the  grantee  in  the  prior  unregistered  deed  to  reliel^ 

§231a.  The  Extent  to  Which  Actual  Notice  Affects 
Subsequent  Purchasers. —  Where  one  purchases  land  pre- 
viously conveyed  by  his  grantor,  he  cannot  occupy  the 
position  of  a  purchaser  in  good  faith,  unless  he  is  without 
notice  of  the  prior  conveyance.  If  the  prior  deed  is  regis- 
tered, he  has  constructive  notice,  by  which  he  and  all 
purchasers  under  him  are  bound.  But  even  where  it  is 
unregistered,  and  the  subsequent  vendee  pays  full  value  for 
the  property,  if  he  is  otherwise  notified  of  the  prior  convey- 
ance, he  takes  no  title,  except  where,  under  the  peculiar 
provisions  of  the  controlling  statute,  no  kind  of  notice,  in 
the  absence  of  registration,  will  be  effectual.^     Although  he 

'Tuttle  V.  Jackson,  6  Wend.,  213;  Greaves  v.  Tofield,  L.  R.,  14  Ch. 
Div.,  563;  Ford  v.  White,  16  Beav.,  120;  Benliam  v.  Keane,  3  De  G.,  F.  & 
J.,  318;  Chadwick  v.  Turner,  L.  R.,  1  Ch.,  310;  Credland  v.  Potter,  L. 
R.,  10  Ch.,  8;  Doe  v,  AUsop,  5  B.  &  Add.,  143;  Walhs  v.  Rhea,  10  Ala., 
451;  Jordan  v.  Mead,  12  Ala.,  247;  Wyatt  v.  Stewart,  34  Ala.,  716;  Dear- 
ing  V.  Watkins,  10  Ala.,  20;  Boyd  v.  Beck,  29  Ala.,  703;  Chew  v.  Barnet, 
11  S.  &  R.,  389 ;  Green  v.  Drinker,  7  Watts  &  S.,  440 ;  Hams  v.  Bell,  10  S. 
&  R. ,  39.  See  ante,  ch.  I,  part  I ;  Bowman  v.  Lee,  48  Mo.,  335 ;  The  "  John 
T.  Moore,"  4  Am.  Law  T.,  406. 

2Farnsworth  v.  Childs,  4  Mass.,  637.  See  Ingram  v.  PhiUipps,  3  Strob- 
hart,  565. 

SMahoney  v.  Middleton,  41  Cal.,  41;  Davis  v.  Earl  of  Strathmore,  16 
Ves.,  419;  Le  Neve  v.  Neve,  Wliite  &  Tud.  Lead.  Cas.  in  Eq.  (4th  Am. 
ed.),  109;  Britten's  Appeal,  45  Pa.  St.,  172.    But  see,  as  to  the  effect  of  a 


13i  NOTICE   BY   KEGISTKATION   OF   INSTRUMENTS. 

pays  value  for  the  property,  and  is  beforehand  with  the 
prior  grantee  in  getting  his  instrument  recorded,  he  will 
hold  the  title  subject  to  the  superior  rights  of  the  prior  pur- 
chaser. There  is  but  one  advantage  he  can  gain  by  record- 
ing his  conversance  in  advance  of  the  others,  and  that  is  to 
be  able  to  pass  a  good  title  to  one  pui'chasing  without  notice 
of  the  former  convej'ance.  And  even  such  innocent  pur- 
chaser, in  order  to  obtain  the  beneht  of  his  position  as  such, 
must  file  his  conveyance  for  record  in  advance  of  the  filing 
of  that  of  the  first  grantee.^ 

§  232.  Purchasers  Protected  by  Good  Faith  of  Execu- 
tion Creditor. —  However,  in  the  case  of  Low  v.  Blinco,-  it 
is  laid  down  as  a  rule,  deduced  from  the  authorities  cited 
below,  that  a  pm^chaser  at  an  execution  sale,  with  notice  of 
an  outstanding  unregistered  title,  is  protected,  provided  the 
creditor  acts  in  good  faith  without  notice.  The  creditor 
having  the  right  to  direct  the  sale,  the  purchaser  takes  all 
the  title  the  sheriff  can  be  required  to  sell.^ 

§  233.  Equitable  Interference  in  Favor  of  Holder  of 
Unrecorded  Title. —  Com-ts  of  equity  do  not  always  regard 
purchasers  at  execution  sales  as  purchasers  for  value.  And 
have  refused  to  allow  a  judgment  creditor  to  subject  land 
of  his  debtor  to  his  judgment  in  equity  after  such  land  had 
been  sold  to  another,  though  not  yet  conveyed,  even  where 
the  creditor  had  no  notice  of  such  sale,  either  actual  or  con- 
structive.* 

peculiar  statute,  Wliite  v.  Denman,  1  Ohio  St.,  110;  Bloom  v.  Noggle, 
4  Ohio  St.,  45;  HoUiday  v.  Fi-anMin  Bank,  16  Ohio,  533;  StauseU  v.  Rob- 
erts, 13  Oliio,  148;  Jackson  v.  Luce,  14  Ohio,  514;  Mayhani  ?;.  Coombs, 
14  Oliio,  428;  Robinson  v.  Willoughby,  70  N.  C,  858;  Leggett  v.  Bullock, 
Busb.  L..  283;  Baker  v.  Woodward,  5  West  Coast  Rep.,  136. 

1  Mahoney  v.  Middleton,  41  Cal.,  41 ;  Fallass  v.  Pierce,  30  Wis.,  443 ;  Ring 
V.  Steele,  3  Keyes,  450 ;  Goelet  v.  McManus,  1  Hun,  306 ;  Sims  v.  Hammond, 
33  Iowa,  368.  But  see  Ghdden  v.  Hunt,  24  Pick.,  221;  Connecticut  v. 
Bradish,  14  Mass.,  296. 

210  Bush  (Ky.),  331. 

3  Morton  v.  Robards,  4  Dana  (Ky.),  258;  Halley  v. Oldham,  5  B.  Monr., 
233;  Righter  v.  Fon-ester,  1  Bush,  278. 

*KeUy  V.  Mills,  41  Miss.,  267. 


OTHER  NOTICE  CONSIDEEED.  135 

§  234r.  Creditor's  Interest  Held  to  Attach  from  Date 
of  Levy. —  Under  a  statute  making  the  record  of  written  in- 
struments notice  to  subsequent  purchasers  and  creditors 
from  the  date  of  filing  for  record,  it  was  held  that  where  a 
levy,  subsequent  to  the  date  of  the  deed,  but  before  the 
same  was  filed  for  record,  a  purchaser  at  the  sale  under  such 
levy  would  be  protected  in  his  purchase,  against  the  grantee, 
whose  deed  was  not  recorded  until  after  the  levy,  provided 
the  creditor  had  no  notice  of  the  deed  at  the  time  he  di- 
rected the  levy.^ 

§  235.  Unregistered  Deeds  Good  Against  Creditors 
With  Notice. —  Unregistered  deeds  are  good  as  against  cred- 
itors with  sufficient  notice  to  put  them  upon  inquiry.  And 
possession  by  the  grantee  has  been  held  sufficient  notice  to 
creditors,  as  well  as  subsequent  purchasers  and  mortgagees." 

§  236.  Notice  of  Deed  Must  be  Suhseqneut  to  Its  Exe- 
cution.—  The  notice  to  creditors  should  be  subsequent  to 
the  execution  of  the  instrument.  So,  where  one  of  two 
creditors  of  an  insolvent  debtor,  anticipating  the  execution 
of  a  deed  to  the  other  creditors  by  way  of  a  preference,  and 
in  fact  having  positive  knowledge  that  such  deed  was  in 
com'se  of  preparation,  sued  out  a  writ  of  attachment  before 
the  deed  was  dehvered,  and  had  the  same  le\'ied  upon  the 
debtor's  land  before  the  deed  had  been  deposited  for  record, 
but  not  before  the  completion  of  the  conveyance,  it  was 
held  that  the  title  derived  under  the  execution  of  the  at- 
tachment would  prevail  over  that  under  the  deed.* 

§  237.  Notice  of  Assignment  Governed  by  Same  Prin- 
ciple.—  So,  also,  in  a  contest  between  two  creditors  of  a 
mortgagee,  where  one  of  them  obtained  an  assignment 
of  the  security  while  an  assigmnent  to  the  other  was  being 
drawn,  and  made  haste  to  have  it  first  recorded,  his  dihgence 
in  taking  advantage  of  the  compliant  disposition  of  the 
debtor,  and  the  deliberate  movements  of  the  other  creditor, 

iReichertv.  McClure,  23  lU.,  516. 

2 Dixon  V.  Doe,  1  Sm.  &  Marsh.,  70;  Priest  v.  Eice,  1  Pick.,  164, 

3  Gushing  v.  Hiu-d,  4  Pick.,  253. 


136  NOTICE   BY    REGISTRATION   OF   INSTUUMENTS. 

gave  him  the  better  title  to  the  mortgage.  He  was  not  in- 
formed of  the  assignment  to  the  other,  after  it  was  made, 
and  could  not  be  charged  with  notice  of  a  fact  by  informa- 
tion received  before  the  fact  was  accomplished.  The  mere 
circumstance  that  he  knew  of  his  rival's  intention  to  obtain 
an  assignment  of  the  security  could  give  that  rival  no 
superior  equity ;  so  that  his  vigikmce  in  being  beforehand 
with  the  other  creditor,  and  getting  his  instrument  first  of 
record,  was  sufficient  to  give  him  the  paramount  right.^ 

§  238.  Judgments  Given  Precedence  Over  Prior 
Deeds. —  In  some  instances,  the  courts,  under  the  peculiar 
wording  of  the  recording  acts  of  their  states,  or  influenced 
and  controlled  by  earlier  decisions  of  the  same  courts,  have 
held  that  a  creditor  would  not  be  affected  by  the  registra- 
tion of  a  prior  deed,  subsequent  to  the  obtaining  of  a  judg- 
ment,-' or  even  the  contraction  of  the  debt  for  which  the 
judgment  is  rendered.^ 

§  239.  Deed  Takes  Priority  if  Registered  Before  Exe- 
cution Sale. —  The  better  opinion  seems  to  be,  however, 
under  statutes  rendering  unrecorded  deeds  void,  as  against 
subsequent  purchasers  and  mortgagees,  without  notice,  and 
for  a  valuable  consideration,  and  where  judgments  become 
liens  upon  the  real  estate  of  the  debtor  from  their  rendi- 
tion, that  where  a  deed  or  mortgage  has  been  .executed  and 
deUvered  prior  to  the  date  of  the  judgment,  -the  purchaser 
or  mortgagee  will  be  entitled  to  the  protection  of  the  reg- 
istry laws  if  his  deed  or  mortgage  is  filed  for  record  before 
the  sale  under  execution.'' 

§  240.  Judgments  Do  Not  Become  Liens  After  Convey- 
ance and  Before  Registry. —  So,  where  pm^chasers  and  mort- 
gagees were  allowed  ninety  days  within  which  to  deposit 

1  Wardin  v.  Adams,  15  Mass.,  233. 

-'  Hulings  V.  Guthrie,  4  Penn.  St.,  123;  Taylor  v.  Doe,  13  How.  (U.  S.), 
287. 

3  See  Britton's  Appeal,  45  Penn.  St.,  172. 

*Greenleaf  v.  Edes,  2  Minn.,  264;  Davis  v.  Ownsby,  14  Mo.,  170; 
"Valentine  v.  Havener,  20  id.,  133;  Mann  v.  Best,  63  Mo.,  491,  and  cases 
cited. 


OTHEK   NOTICE    CONSIDEKED. 


13Y 


their  deeds  and  mortgages  for  record,  and  a  purchaser  al- 
lowed the  time  to  pass  without  recording  his  deed,  before 
he  had  deposited  it  for  record,  judgment  was  obtained 
against  the  former  owners,  and  one  A.  became  "  replevin 
bail "  upon  the  faith  of  representations  by  the  judgment 
debtor  that  the  land  was  unincumbered,  except  by  the  lien 
of  the  judgment.  In  an  action  by  the  replevin  bail  for  the 
purpose  of  securing  indemnity  through  the  means  of  the 
judgment,  for  his  collateral  undertaking,  it  was  held  that 
the  judgment  was  no  lien  upon  the  land,  for  the  reason  that 
the  debtor  had  no  title  to  the  land  at  the  timp  it  was  ren- 
dered, and  the  replevin  bail  could  occupy  no  better  position 
with  respect  to  the  judgment  than  the  creditor  himself 
would  have  enjoyed.^ 

§  241.  Title  Not  Affected  by  Recording  Deed  After  Title 
Tests  in  Innocent  Purchaser. — ^The  title  having  once 
passed  through  the  hands  of  a  purchaser  for  value,  and 
without  notice  of  a  prior  unregistered  deed,  it  will  pass  to 
subsequent  grantees,  unaffected  by  the  prior  conveyance, 
whether  subsequently  recorded  or  not.  So,  where  one  who 
purchased  with  notice,  and  before  the  registration  of  the 
prior  deed,  conveys  to  another,  who  has  no  actual  or  con- 
structive notice  of  such  instrument,  the  title  of  his  grantee 
is  good  against  the  former  unregistered  conveyance. 
Should  this  last  grantee  convey  to  still  another  who  had 
both  actual  and  constructive  notice  of  the  prior  deed,  his 
title  would  be  good  in  spite  of  the  outstanding  conveyance.^ 

1  Under  some  of  the  English  statutes  judgments  do  not  become  liens  on 
real  estate  as  against  subsequent  bo7ia  fide  purchasers,  unless  they  are 
duly  registered.  Beavan  v.  Earl  of  Oxford,  6  De  G.,  M.  &  G.,  492 ;  Eyre  v. 
McDowell,  9  H.  L.  Cas.,  619;  Hickson  v.  CaUis,  1  Jones  &  L.,  94.  See 
Freer  v.  Hesse,  4  De  G.,  M.  &  G.,  495;  Governors  of  the  Grey  Coat  Hos- 
pital V.  Westminster,  etc.,  Comm'rs,  1  De  G.  &  J.,  531;  Knight  v.  Po- 
cock,  24  Beav.,  436;  Churchill  v.  Grove,  1  Ch.  Cas.,  35;  Lee  v.  Green, 
6  De  G.,  M.  &  G.,  155;  Davis  v.  Strathmore,  16  Ves.,  419;  Proctor  v. 
Cooper,  3  Drew,  1;  1  Jur.,  N.  S.,  149;  Runyan  v.  McClellan,  24  Ind., 
165. 

2  Trull  V.  Bigelow,  16  Mass.,  406;  Somes  v.  Brewer,  2  Pick.,  184. 


138  NOTICE   BV   KEGISTEATION   OF   INSTRUMENTS.    - 

§  242.  Reasons  for  tlie  Above  Doctrine. —  It  aaouIcI  be 
but  a  doubtful  protection  to  a  lona  fide  purchaser  if  his  re- 
liance upon  the  record  only  gave  him  a  title  to  the  prop- 
erty pui'chascd,  Avhich  the  law  rendered  inalienable  except 
to  those  who  might  be  as  ignorant  of  the  adverse  claim  as 
he  was  himself  before  the  purchase.  The  law  having  de- 
clared that  the  deed  was  void  as  to  him,  meant  that  the 
title  which  he  obtained  should  be  as  absolute  and  unbur- 
thened  by  the  unregistered  deed,  or  those  claiming  under 
it,  as  though  no  such  instrument  was  ever  executed.  The 
title  cannot  be  wrested  from  him  by  the  negligent  grantee, 
nor  will  the  law  allow  the  value  of  the  property  to  be  di- 
minished in  his  hands  by  depriving  him  of  the  benefits  of  a 
free  market.^ 

§  243.  Effect  of  Re-purcliase  by  Fraudulent  Grantor. — 
But  should  the  premises  come  again  to  the  hands  of  the  fraud- 
ulent grantor,  they  will  be  held  by  him  in  trust  for  the 
first  grantee.  It  being  deemed  a  wrong  of  less  magnitude 
to  deprive  the  innocent  purchaser  of  this  one  opportunity 
to  sell  than  it  would  be  to  suffer  the  perpetrator  of  such  a 
fraudulent  act  to  enjoy  any  advantage  over  his  victim.- 

§  244.  Conflicting  Decisions  as  to  Sufficient  Notice  of 
Unregistered  Deed. —  There  is  a  marked  contrariety  in  the 
authorities  as  to  what  is  sufficient  notice  of  an  unregistered 
deed.  This  difference,  in  some  instances,  is-  owing  to  the 
different  statutory  provisions  of  those  states  where  the 
question  has  been  adjudicated.  In  other  instances  there 
are  conflicting  decisions  as  to  the  proper  construction  of 
similar  or  even  identical  statutes,  by  w^hich  decisions  the 
law  is  regarded  as  settled  within  the  jui'isdiotion  of  the 
courts  by  which  they  are  rendered.* 

>  Ante,  §§  61,  62. 

-  Ante,  %  63. 

3Dey  V.  Dunham,  2  Johns.  Ch.,  182;  Dunham  v.  Dey,  15  Johns.,  555; 
Norcross  v.  Widgery,  2  Mass.,  505;  McMechan  v.  Griffing,  3  Pick.,  149; 
U.  S.  Ins.  Co.  V.  Shriver,  3  Md.  Ch.,  381;  Gen'l  Ins.  Co.  v.  U.  S.  Ins. 
Co.,  10  Md.,  517;  Flemmg  v.  Burgin,  2  Ii'ed.  Eq.,  584;  Noyes  v.  HaU,  97 
U.  S.,  34;  Brinkman  v.  Jones,  44  Wis.,  498;  White  v.  Foster,  102  Mass., 


OTHER  NOTICE  CONSIDERED.  139 

§  245.  Express  Notice  Required. —  In  some  of  tlie  cases 
it  has  been  decided  that  nothing  short  of  express  notice  of 
the  prior  unregistered  deed  will  suffice  to  charge  the  subse- 
quent purchaser,  and  protect  the  title  of  the  prior  grantee. 
The  information  by  which  the  subsequent  grantee  or  mort- 
gagee is  advised  of  the  existence  of  the  prior  unregistered 
instrument,  to  be  effective,  must  be  so  direct  and  positive 
that  to  disregard  it  Vv^ould  amount  to  fraud  on  his  part.^ 

§  246.  Actual  or  Constructive. —  Others  hold  that  the 
notice  may  be  either  actual  or  constructive,  express  or  im- 
plied. And.  where  actual  notice  is  required  by  statute,  they 
vary  in  their  construction  of  the  law  as  to  the  evidence  by 
which  such  notice  may  be  established.  These  la,tter,  in  fur- 
therance of  the  liberal  construction  given  for  the  benefit  of 
the  grantee  whose  deed  is  unrecorded,  hold  that  any  fact 
coming  to  the  laiowledge  of  the  subsequent  purchaser,  suffi- 
cient to  put  a  man  of  ordinary  prudence  upon  inquiry,  and 
which,  if  followed  out,  would  lead  to  express  notice  of  the 
unregistered  conveyance  or  claim,  is  sufficient  to  invalidate 
the  subsequent  deed,  notwithstanding  the  provisions  of  the 
registry  laws.  !Notice  is  imputed  to  him  on  account  of  his 
negligence  in  not  prosecuting  his  inquiries  in  the  direction 
indicated.- 

375;  Lamb  v.  Pierce,  113  Mass.,  72;  Crassen  v.  Swoveland,  22  Ind.,'427; 
Wilson  t'.  Hunter,  30  id.,  466;  Lawton  v.  Gordon,  37  Cal.,  202;  Maupin 
V.  Emmons,  47  Mo.,  304. 

iPomxoy  V.  Stevens,  11  Mete.  (Mass.),  244;  Spofford  v.  Weston,  29 
Me.,  140;  Porter  v.  Sevy,  43  id.,  519;  Dooley  v.  Wolcott,  4  Allen,  406; 
Lilliard  v.  Ruckers,  9  Yerg.,  64;  Dewey  v.  Littlejohn,  2  Ired.  Eq.,  495; 
May  ham  v.  Coombs,  14  Ohio,  428;  Hine  v.  Dodd,  2  Atk.,  275;  Jackson 
V.  Van  Valkenburgh,  8  Cow.,  260;  Jolland  v.  Staiubridge,  3  Ves.  Jr.,  478. 

2  Dunliam  v.  Dey,  15  Johns. ,  555 ;  Brinkman  v.  Jones,  44  Wis. ,  498 ; 
Noyes  v.  Hall,  97  U.  S.,  34;  Wilson  v.  Hunter,  30  Ind.,  466;  Ci-assen  v. 
Swoveland,  22  Ind.,  427;  Ti-uesdale  v.  Ford,  37  lU.,  210;  Cabeen  v. 
Breckenridge,  48  111.,  91;  Porter  v.  Cole,  4  Me.,  20;  Wliitbread  v.  Jor- 
dan, 1  Young  &  Colyer,  303;  Williamsons.  Brown,  15  N.  Y.,  354;  I&ider 
V.  Lafferty,  1  Whart.,  303;  Hankinson  v.  Barbour,  29  111.,  80;  Hopkins 
V.  Gerrard,  7  B.  Monr,,  312;  Curtis  v.  Mundy,  3  Mete.  (Mass.),  405; 
Clark  V.  Trindle,  52  Pa.  St.,  492;  Dixon  v.  Doe,  1  Sm.  &  Marsh.,  70;  Tay- 


140  NOTICE   BY   KEGISTKATION   OF   INSTRUMENTS. 

§  247.  Different  Kinds  of  Notice  Referred  to.— As  to 

the  effect  of  the  doctrine  of  lis  pendens,  and  notice  arising 
from  recitals  in  the  conveyances  forming  the  chain  of  title 
of  the  ])m'chaser,  and  also  as  to  notice  by  possession,  the 
reader  is  referred  to  the  subsequent  chapters  where  these 
topics  are  separately  treated,  and  more  fully  illustrated  by 
reference  to  adjudged  cases,  classified  under  their  respective 
heads.* 

§  248.  Cases  Holding  Notice  Ineffectual  Against  the 
Record. —  Some  of  the  cases  cited  in  support  of  the  strictest 
construction  of  the  statute,  as  Lilliard  v.  Ruckers,  and  Dewey 
V.  Littlejohns,  take  the  extreme  position  that  personal  notice 
of  an  unregistered  deed  will  not  affect  the  subsequent  pur- 
chaser who  relies  upon  the  record.  So,4n  the  case  of  May- 
ham  V.  Coombs,^  which  was  decided  under  a  statute  rendering 
unregistered  mortgages  absolutely  void  as  to  the  subsequent 
purchases  or  incumbrances,  the  court  gave  the  statute  such 
a  construction  as  would  render  notice  hj  any  other  means 
ineffectual. 

§249.  Cases  Holding  Implied  Notice  Sufficient. —  The 
cases  of  Williamson  v.  Brown,*  Whitbread  v.  Jordan,*  and 
most  of  the  others  cited  in  support  of  the  more  liberal 
construction,  go  upon  the  ground  that  even  actual  notice  is 
a  fact  to  be  established  by  evidence,  and  may  be  proved 
otherwise  than  by  evidence  of  direct  personal  information. 
They  also  hold,  for  the  most  part,  that  voluntary  ignorance 
on  the  part  of  the  pm'chaser  is  the  legal  and"  logical  equiva- 
lent of  actual  knowledge. 

§  250.  Illustration  of  Implied  Notice. —  Musgrove  v. 
Bonser  ^  was  a  case  where  the  deed  had  been  copied  upon 

loru.  Lowenstein,  50  Miss.,  278;  Edwards  v.  Thompson,  71  N.  C,  177; 
Musgrove  v.  Bonser,  5  Oregon,  313;  Nute  v.  Nute,  41  N,  H.,  60;  Galland 
V.  Jackman,  26  Cal.,  79.  See  Wormald  v.  Maitland,  35  L.  J.  Ch.  (N.  S.), 
69;  In  re  Allen,  1  Ir.  R.  Eq.,  455. 

1  See  post,  chs,  IV,  V,  VI. 

2 14  Ohio,  428. 

3  15N.  Y.,  354. 

*1  Y.  &  Col.,  303. 

*5  0reg.,  313. 


OTHEE  NOTICE  CONSIDERED.  141 

the  records,  but  because  it  was  improper!}^  acknowledged 
before  recording,  the  record  was  held  a  nullity  as  construct- 
ive notice.  But  the  attorney  who  was  employed  by  the 
subsequent  purchaser  to  search  the  record  for  instruments 
affecting  the  title,  saw  the  defective  record  of  the  deed  in 
question,  and  informed  the  purchaser  that  it  had  no  right 
on  record.  Upon  the  ground  that  notice  to  the  agent  was 
notice  to  the  principal,  the  court  held  that  the  actual  knowl- 
edge the  attorney  had  of  the  defectively  acknowledged  deed 
was  sufficient  to  have  put  a  man  of  ordinary  prudence  upon 
such  inquiry  as  must  have  inevitably  led  to  the  knowledge 
of  the  unrecorded  deed,  and  that  it  was  therefore  binding 
upon  the  purchaser's  conscience.^ 

§  251.  Any  Kind  of  Notice  Will  Affect  Purchaser. — 
From  a  careful  consideration  of  the  authorities,  old  and  new, 
English  and  American,  it  seems  that  the  better  doctrine  is 
now,  except  where  the  statute  is  imperative  in  its  provisions 
to  the  contrary,  that  any  species  of  notice,  by  which  one 
seeking  to  purchase  real  estate  is  informed  of  or  cautioned 
in  regard  to  any  unregistered  instrument  affecting  the  title 
to  the  property,  or  any  equitable  interest  claimed  by  any 
one,  will  as  effectually  bind  such  property  in  the  hands  of 
such  purchaser  as  it  would  in  the  hands  of  the  fraudulent 
grantor.^ 

§  252.  Putting  Upon  Inquiry  Held  Insufflcient.— The 
case  of  Jackson  v.  Yan  Yalkenburg  ^  is  one  of  those  in  which 
it  is  declared  that  notice  of  an  antecedent  unregistered 
mortgage  upon  the  leasehold,  to  the  assignee  for  value  of  a 
subsequent  mortgage  upon  the  fee  of  the  same  premises,  in 
order  to  affect  his  rights  under  the  assignment,  must  be 
such  as  would  with  the  attendant  circumstances  be  suiiicient 
to  fix  upon  him  the  imputation  of  a  fraudulent  purpose  in  ac- 
cepting the  assignment.     It  was  held  that  putting  the  party 

'See  Barnes  v.  McClinton,  3  Perm.,  67. 

2 Porter  v.  Cole,  4  Me.,  20.    See  ante,  ch.  I,  Actual  Notice. 

8  8  Cow.,  260. 


142  NOTICE   BY   REGISTRATION   OF   INSTKUilENTS. 

upon  inquiry  was  not  sufficient.  The  circumstances  of  this 
particular  case  were  such  that  it  may  well  be  doubted 
whether  such  notice  as  the  assignee  had  was  sufficient  to 
put  him  upon  inquiry  respecting  a  mortgage,  as  what  he 
learned  was  from  the  record  of  an  absolute  assignment  of 
the  lease,  without  the  defeasance  which  should  have  been 
recorded  with  it.' 

§  253.  Knowledge  of  Mortgage  Withheld  from  Rec- 
ord.— Where  a  mortgage  is  designedl}^  withheld  from  regis- 
tration, in  order  to  preserve  tlie  credit  of  tlie  mortgagor  in 
the  commercial  world,  such  conduct  on  the  part  of  the 
mortgagee  is  not  fraudulent  as  to  one  having  knowledge  of 
the  entire  transaction,  as  he  is  not  deceived  by  it.  And 
whatever  might  be  the  rights  of  a  party  who  purchased  in 
ia'norance  of  the  facts,  the  one  who  seeks  to  take  advantage 
of  an  unregistered  instrument,  of  the  existence  of  which  he 
has  been  fully  informed,  Avill  be  allowed  to  enjoy  no  special 
advantages  from  the  fact  that  the  failure  to  record  the 
mortgage  was  fraudulent  as  to  others.- 

§  254.  Record  of  Instrument  Affecting  Equitable  In- 
terest.—  The  record  of  an  assignment  or  mortgage  of  an 
equitable  interest  in  real  estate  will  operate  as  notice  to 
subsequent  purchasers  or  mortgagees,  as  effectually  as  though 
the  legal  title  were  conveyed  or  incumbered ;  as  where  one 
purchases  land  for  which  he  receives  a  title-bond  instead  of 
a  deed,  conditioned  that  the  legal  title  sliall  be  convej^ed  to 
him  when  the  land  is  paid  for,  which  bond  is  duly  recorded ; 
and,  before  pa3"ing  for  the  land,  the  purchaser  mortgages 
his  interest,  and  subsequently  the  mortgagor,  in  order  to 
meet  the  demands  of  his  grantor,  executes  a  mortgage  to 
still  another  party,  and  with  the  proceeds  pays  for  the  land 
and  receives  a  deed.  In  such  case  the  release  from  the 
vendor's  lien  inures  to  the  benefit  of  the  first  mortgagee, 
and  the  second  mortgagee,  by  the  record  of  the  title-bond 

1  See  ante,  %  186  et  seq. 

2  Pike  V.  Arinstead,  1  Dev.  Eq.,  110. 


OTHER  XOTICE  CONSIDEKED.  143 

and  the  first  mortgage,  is  charged  with  notice  of  the  rights 
thereby  secured.^ 

§  255.  Effect  of  Withdrawing  Deed  from  Files  Before 
Recording. —  But  when,  as  in  the  case  of  Glamorgan  v. 
Lane,^  the  grantee  placed  his  deed  on  record  on  the  26th 
da}"  of  the  month,  and  a  subsequent  purchaser  received  a 
deed  to  the  same  premises  from  the  same  grantor  on  the 
27th,  which  he  placed  on  record  in  the  forenoon,  and  the 
first  grantee  withdrew  his  deed  from  the  files  to  be  canceled, 
and  accepted  another  deed,  which  he  deposited  for  record  in 
the  afternoon  of  the  27th,  it  was  held  that  the  record  of  the 
first  deed  was  no  notice  of  the  one  given  in  lieu  thereof,  and 
that  the  prior  purchaser  could  not  claim  priority  of  record 
after  withdrawing  the  first  deed  from  the  files.' 

§  256.  Priority  Secured  by  Registration. —  Under  stat- 
utes which  prescribe  no  time  within  which  the  instrument 
may  be  recorded,  the  courts  have  generally  regarded  the 
first  recorded  of  two  instruments  affecting  the  title  to  the 
same  land,  as  the  one  entitled  to  precedence.  As  where  a 
grantor  took  a  mortgage  for  a  portion  of  the  purchase 
price,  and  intrusted  it  to  the  mortgagor  with  directions  to 
have  it  recorded,  but  before  depositing  it  for  record  the 
morto-ao-or  entered  into  a  written  contract  with  another 
party,  who  had  no  notice  of  the  mortgage,  to  convey  the 
land  to  him;  the  mortgage  being  recorded  prior  to  the 
recording  of  the  contract,  and  before  the  latter  was  either 
carried  out  or  brought  to  the  knowledge  of  the  mortgagee, 
it  was  held  that  he  might  subject  the  land  to  the  payment 
of  his  debt  as  though  the  contract  had  not  been  made.'* 

§  257.  Fraud  Practiced  by  Agent. —  It  has  been  held, 
where  there  was  a  similar  statute  to  the  one  under  which 
the  case  cited  above  was  decided,  where  the  claim  for  prece- 

1  Alderson  v.  Ames,  6  Md.,  52;  Glamorgan  v.  Lane,  9  Mo.,  446;  Gren'l 
Ins.  Co.  V.  U.  S.  Ins.  Co.,  10  Md.,  517;  U.  S.  Ins.  Co.  v.  Sliriver,  3  Md. 
Ch.,  381. 

2  9  Mo.,  446. 

3Kiser  v.  Heuston,  38  111.,  253. 

*  Anketel  v.  Converse,  17  Ohio  St.,  11. 


144  NOTICE   BY   KEGISTRATION   OF   INSTKUMENTS. 

dence  was  being  contested  in  a  court  of  equity,  that  the 
court  would  determine  the  relative  rights  of  the  parties  on 
equitable  principles.^  It  is  difficult  to  understand  how  a 
court  of  equity  could  tolerate  such  a  palpable  fraud  as  was 
apparently  perpetrated  upon  the  innocent  contracting  party 
in  the  Ohio  case.  The  mortgagee,  by  intrusting  his  secu- 
rity to  the  mortgagor,  not  only  made  him  his  agent,  but  did 
so  with  the  knowledge  that  he,  of  all  others,  was  most  in- 
terested in  violating  his  trust,  and  by  so  doing  enabled  him 
to  practice  a  fraud  upon  others. 

§258.  Tague  Information  Disregarded. —  The  case  of 
Jolland  V.  Stainbridge,^  which  has  been  cited  as  one  in 
which  express  notice  is  required  in  order  to  deprive  a  sub- 
sequent pm'chaser  or  mortgagee  of  the  protection  of  the 
registry  laws,  was  a  contest  between  one  claiming  mider  an 
unregistered  will,  and  a  subsequent  mortgagee.  The  evi- 
dence of  notice  was  that  the  mortgagee  was  told,  while 
negotiations  were  pending,  that  the  person  offering  the 
premises  had  no  right  to  sell  the  same.  Also  the  evidence 
of  the  mortgagee's  bookkeeper,  that  the  WTfe  of  mortgagee 
told  the  witness,  in  the  presence  and  liearing  of  her  husband, 
prior  to  the  mortgage,  that  the  devisee's  mother  had  told 
the  mortgagee  not  to  purchase,  as  the  estate  belonged  to 
her  daughter.  Still  the  court  held  that  the  evidence  of 
notice  was  not  such  as  would  show  conduct  on  the  part  of 
the  mortgagee  amounting  to  actual  fraud,  and  gave  the  pref- 
erence to  the  subsequent  registered  mortgage. 

§  259.  Sul)se(iuent  Purchase  Not  Invalidated  by  Notice 
of  Prior  Deed. —  Notice  will  not  always  invalidate  a  sub- 
sequent purchase,  even  when  it  is  so  direct  and  positive  as 
to  be  equivalent  to  actual  knowledge.  Circumstances  may 
arise  where  a  purchase,  subsequent  to  an  unregistered  con- 
veyance, may  be  made  in  such  good  faith  that  it  will  be 
protected,  even  though  the  purchaser  has  undeniable  knowl- 
edge of  the  prior  deed.     As  where  he  is  informed  by  the 

1  Swigert  v.  Bank  of  Kentucky,  17  B.  Monr.,  268. 

2  3Ve3.  Jr.,  478. 


OTHEK   NOTICE    CO^'SIDEKED.  145 

prior  grantee  liimself  that  the  deed  is  withheld  from  the 
record  because  he  does  not  intend  to  assert  any  title  under 
it,  and  that  it  was  never  intended  to  operate  as  an  actual 
conveyance  of  the  land,  and  the  second  purchase  is  made 
in  reliance  upon  these  representations. 

§  260.  Same  —  DouMfiil  Authority. —  A  court  of  equity 
has  even  declared  the  doubtful  doctrine  that  a  subsequent 
purchaser  would  be  protected,  when  he  acted  in  good  faith, 
after  notice  of  the  prior  unregistered  deed,  because  he  had 
been  informed  of  the  intention  of  such  grantee  not  to 
record  his  deed  or  assert  his  title,  where  it  did  not  appear 
that  the  information  came  from  the  grantee  himself.' 

§261.  Record  Chain  of  Title  Incomplete.— The  pur- 
chaser may  be  served  with  constructive  notice  by  registra- 
tion, even  when  the  complete  chain  of  title  does  not  appear 
of  record.  The  connection  between  the  title  or  interest 
with  notice  of  which  he  is  charged  by  the  record,  and  that 
upon  which  it  depends,  may  be  independent  of  the  record. 
As,  where  the  provision  of  the  statute  was,  that  every 
instrument  affecting  the  title  of  real  estate  from  the  time 
of  filing  with  the  register  of  deeds  for  record  "  shall  impart 
notice  to  all  persons  of  the  contents  thereof,  and  all  subse- 
quent purchasers  and  mortgagees  shall  be  deemed  to  pur- 
chase with  notice,"  it  was  held  that  one  purchasing  with 
notice  of  an  outstanding  unregistered  equitable  interest  in 
land  was  chargeable  with  notice  of  an  incumbrance  of  such 
interest  which  had  been  filed  for  record,  though  he  may  have 
purchased  without  actual  notice  of  such  mortgage." 

§  262.  Assignee  of  a  Mortgage  Regarded  as  Pnr- 
cliaser. —  The  assignee  of  a  mortgage  will  be  protected  to 
the  same  extent  as  any  other   innocent   purchaser.*    As, 

1  Fleming  v.  Burgin,  2  Iredell,  Eq.,  584.  Where  the  subsequent  pur- 
chaser receives  no  notice  until  after  consideration  paid,  notice  will  not 
prevent  him  from  perfecting  his  right  by  filing  liis  deed  for  registration. 
Essex  V.  Baugh,  1  Y.  &  C.  Ch.,  620;  Elsey  v.  Lutyens,  8  Hare,  159. 

2  Jones  V.  Lapham,  15  Kans.,  540. 

3  But  the  purchaser  of  a  mortgage  will  have  constructive  notice  from 
the  record,  of  a  mortgage  of  even  date,  though  recorded  subsequent  to 

10 


IJrG  KOTICE    BY    EEGISTKATION    OF   IXSTRUMEXTS. 

where  a  mortgage  was  given  to  secure  a  debt,  subsequent 
to  a  deed  conve3'ing  the  same  premises  to  another,  but  the 
deed  was  not  recorded  until  after  the  mortgage  had  been 
assigned  to  a  hona  fide  purchaser  for  value,  and  the  mort- 
gagee took  the  mortgage  without  notice  of  the  unregistered 
deed,  it  was  lield  that  the  assignee  was  not  affected  by  the 
subsequent  registration  of  the  deed,  but  woidd  still  be  enti- 
tled to  subject  the  land  to  the  payment  of  his  demand,^ 

§  2fi3.  Time  of  Notice. —  The  time  when  the  notice  is 
imparted  to  a  subsequent  purchaser  is  often  material  in 
determining  whether  or  not  his  purchase  will  be  affected 
thereb}''.  The  notice,  in  order  to  affect  his  conscience,  may 
have  been  given  too  long  before  his  acquisition  of  title  to 
render  it  probable  that  the  fact  of  the  prior  conveyance 
was  present  to  liis  mind  when  he  made  the  purchase.^ 

§  2G4.  Same,  to  Attaching  Creditor. —  But  where  land 
was  attached  at  the  suit  of  a  creditor,  as  the  land  of  his 
debtor,  when  he  had  been  informed  by  the  grantee,  two 
years  prior  to  tlie  attachment,  tliat  he  had  purchased  the 
land  from  the  debtor,  it  was  held  that  though  the  deed  to 
the  purchaser  was  still  unrecorded  at  the  time  of  the  attach- 
ment, the  notice  was  sufficient,  and  the  purchaser's  title 
would  be  protected  as  against  the  attaching  creditor.' 

§  265.  When  Notice  Too  Late. —  The  notice  may  also  be 
too  late  to  be  effectual  against  those  who  subsequently  ac- 
quire title  to  the  premises,  or  an  equitable  interest  therein. 
On  this  point,  there  has  been  no  little  contrariety  of  opinion 
exj^ressed  by  the  courts,  at  different  times, —  partly  owing 
to  difference  in  the  statutes,  but  in  some  instances  the  de- 
cisions are  at  variance  where  the  statutes  construed  are 
substantially  the  same.     However,  it  wiU  be  found  to  be 

tiie  one  purchased,  if  such  purcliase  Tvas  subsequent  to  the  recording 
of  the  other  instrument.    Van  Aken  v.  Gleason,  34  Mich.,  477. 

I  Mott  V.  Clark,  9  Pa.  St.,  399. 

2Boggs  V.  Varner,  6  W.  &  S.,  469;  Fuller  v.  Bennett,  2  Hare,  394; 
Worsley  v.  Earl  of  Scarborough,  3  Atk.,  392. 

^Ogden  V.  Haven,  24  111.,  57;  Cox  v.  Milner,  23  id.,  476. 


OTHER   NOTICE    CONSIDERED. 


147 


almost  uniformly  held  that  the  notice  is  too  late  if  it  comes 
to  the  purchaser  only  after  he  has  completed  the  purchase 
and  paid  the  consideration.^ 

§  366.  After  Purchase  at  Execution  Sale. —  It  has  been 
maintained,  however,  that  a  purchaser  at  an  execution  sale 
directed  by  the  creditor  in  good  faith,  after  having  made 
the  purchase  is  entitled  to  his  deed,  even  though  he  receives 
notice  of  a  prior  unregistered  deed  previous  to  his  payment 
of  the  purchase  money.  And  it  is  further  held  that  his 
rights  will  not  be  affected,  either  by  the  fact  that  he,  being 
a  stranger  to  the  execution,  had  notice  of  the  prior  deed,  or 
that  he  is  himself  the  execution  creditor,  provided  he  had 
no  notice  before  the  sale.  But  should  the  knowledge  of 
the  adverse  interest  come  to  him  in  the  way  of  an  an- 
nouncement at  the  time  of  the  sale,  and  before  it  is  closed, 
the  title  acquired  by  the  purchase  will  be  subordinate  to 
that  of  the  prior  grantee.^ 

§  267.  Bofore  Legal  Title  is  Conveyed. —  Upon  the  other 
hand,  it  has  been  held  by  the  same  court  in  which  the  above 
doctrine  was  announced,  that  a  purchaser  of  land  takes 
subject  to  prior  equities  of  which  he  has  notice,  although 
the  contract  is  completed,  and  even  the  purchase  money 
paid,  before  notice  is  given  of  the  antecedent  claim,  pro- 
vided he  is  notified  before  •  his  own  equity  is  clothed  with 
the  legal  title ;  and  creditors  to  whom  the  title  is  transferred 
by  operation  of  law  occupy  no  better  position  than  any 
other  subsequent  purchaser.^ 

§  268.  Time  of  Filing  for  Record  Fixed  by  Statute.— 
In  those  states  where  a  certain  period  of  time  is  fixed  by 
statute  within  which  the  instrument  is  required  to  be  lodged 
with  the  officer  for  registration,  the  failure  to  deposit  it  for 
record  within  the  time  prescribed  does  not  always,  as  we 
have  seen,*  operate  to  invalidate  the  record.     It  is,  in  gen- 

1  Henry  v.  Raiman,  25  Penn.  St.,  354.     See,  also,  ante,  §  93. 

2  Low  V.  Blinco,  10  Bush  (Ky.),  331;  Morton  v.  Eobards,  4  Dana,  258; 
Halley  v.  Oldham,  5  B.  Monr.,  233;  Righter  v.  FoiTCster,  1  Bush,  278. 

3  Corn  V.  Sims,  3  Met.  (Ky.),  391. 
*  Supra,  %%  102,  225. 


148  NOTICE    BY    REGISTKATION   OF   IXSTKUMENTS. 

eral,  good  for  all  the  purposes  for  whicli  it  was  originally 
designed,  from  the  date  of  its  filing  for  record,  whenever 
that  is  after  the  time  prescribed.'  But  it  has  been  decided 
that  a  voluntary  deed,  to  be  effectual  as  against  creditors  of 
tlie  grantor  without  notice,  should  be  recorded  within  three 
months  of  the  deUvery  of  the  deed,  where  that  was  the 
statutory  time  fixed.-  The  statute  was  construed  with  the 
same  strictness  in  favor  of  a  subsequent  mortgage  given  to 
secure  the  debt  of  the  husband,  where  the  prior  voluntary 
deed  was  from  the  husband  to  the  wife.' 

§  2()9.  RecordiDg  After  Death  of  Grantor. —  It  has  also 
been  held  that  the  registration  of  a  deed  after  the  death  of 
the  grantor  was  not  good  as  against  creditors  of  the 
grantor,  who  had  no  notice  of  such  conveyance ;  *  but  the 
application  of  this  rule  Avould  be  controlled  in  a  great 
measure  by  statutorj'-  provisions  as  well  as  by  the  pecuhar 
circumstances  of  any  case  in  which  it  might  be  invoked. 

§  270.  Examining  Records  Insiilficient  luqniry. —  A 
purchaser  who,  previous  to  the  purchase,  is  infonned  of  a 
prior  unregistered  deed  to  the  same  premises,  and  who 
searches  the  records  without  finding  any  entry  of  the  prior 
deed,  will  not  be  protected  as  a  pm-chaser  in  good  faith 
merely  because  he  examined  the  records  after  receiving  in- 
formation of  the  prior  deed.  He  should  have  made  per- 
sonal inquiry  from  those  most  Ukely  to  possess  knowledge 
of  the  conveyance,  and,  from  the  character  of  the  discover- 
ies made  in  the  course  of  such  inquiry,  been  warranted  in 
beheving  that  no  such  deed  had  ever  been  executed  and 
delivered;' 

§  271.  Unrecorded  Chattel  Mortgage. —  Under  a  statute 
which  rendered  a  mortgage  of  chattels  void,  except  as 
against  the  mortgagor  and  his  hell's,  unless  recorded,  it  was 

1  Supra,  %%  103,  225. 
-  Fulcher  v.  Royal,  55  Ga.,  68. 
^  Sumner  v.  Bryan,  54  Ga.,  613. 
*  Lank  v.  Hiles,  4  Houst.  (Del.),  87. 

sShotweU  V.  Harrison,  30  Llich.,  179;  ante,  §  11,  and  cases  cited  in 
note. 


OTHEE   NOTICE   CONSIDEEED.  149 

held  that  such  a  mortgage  was  good  against  an  attaching 
creditor  with  notice.  And  also  that  notice  to  the  officer 
levying  the  attachment  was  notice  to  the  creditor  by  whom 
the  attachment  was  directed.' 

§272.  Description  of  Debt  in  Mortgage. —  In  some 
cases  considerable  strictness  has  been  required  in  mortgages, 
to  render  their  registration  effectual,  in  the  description,  not 
only  of  the  property  incumbered,  but  of  the  debt  thereby 
secured.  In  general,  however,  more  recent  decisions  have 
favored  such  modifications  of  the  rules  in  regard  to  specifi- 
cation of  the  amount  of  debt,  and  the  nature  of  the  evi- 
dences thereof,  that  morto^ao^es  to  secm^e  future  advances 
are  permitted  when  the  amount  to  be  secm'ed  is  necessarily 
uncertain.- 

iTiicker  v.  Tilton,  55  N.  H.,  223. 

2  Witczinski  v.  Everman,  51  Miss. ,  841.  See,  also,  United  States  v.  Hooe, 
3  Ci-anch,  73;  Shirras  v.  Caig,  7  Ci-anch,  34;  Leeds  v.  Cameron,  3  Sumn., 
488;  Commercial  Bank  v.  Cunningham,  24  Pick.,  270;  (joddard  v.  Saw- 
yer, 9  Allen,  78;  James  v.  JMorey,  2  Cow.,  246,  292.  It  is  held  in  the 
latter  case,  however,  that  the  record  of  an  assignment  of  a  mortgage 
will  not  be  notice  to  subsequent  pm-chasers,  because  it  is  not  requu-ed  to 
be  registered.  It  is  laid  down  in  Jones  on  Mortgages  (§  365),  as  the  En- 
ghsh  iTile  with  respect  to  notice,  as  it  affects  mortgagees  for  futm-e 
adTances,  that  notice  to  such  a  mortgagee  of  a  subsequent  incum- 
brance wiU  render  any  advances  made  thereafter  subservient  to  the 
hen  of  the  second  mortgagee.  But  such  does  not  seem  to  be  the  mle  in 
this  country.    Jones  on  Mortgages,  §§  365,  366,  367,  and  cases  cited. 


CHAPTER  IV. 

NOTICE  BY  POSSESSION. 

§  273.  General  Docti-ine. 

274.  Modified  by  Registry  Laws. 

275.  Evidence  of  Actual  Notice. 

276.  Sufficient  to  Put  Purchaser  Upon  Inquiry, 

277.  Same. 

278.  Effect  of  Knowledge  of  Possession. 

279.  Voluntary  Ignorance. 

280.  Character  of  Possession. 

281.  Possession  by  Tenant. 

282.  Notice  of  Interest  Claimed  by  Occupant. 

283.  Notice  of  titerest  of  Occupant's  Creditors. 

284.  Tenant's  Occupancy,  Notice  of  Landlord's  Title. 

285.  Same. 

286.  Consistency  of  Foregoing  Doctrine. 

287.  Possession  No  Evidence  of  Title  in  Stranger. 

288.  Must  be  Actual,  Notorious  and  Continuous. 

289.  Occupancy  by  Church  Society. 

290.  Exclusive. 

291.  Unequivocal. 

292.  Doubtful  in  Extent. 

293.  Same. 

294.  Possession  and  Right  Claimed  Contemporaneous. 

295.  Instance  of  Exception  to  the  Rule. 

296.  Effect  of  Abandoning  Possession. 

297.  Possession  Referred  to  Record  Title, 

298.  Same. 

299.  Claim  Consistent  with  Record  Title. 

300.  Notice  of  Reservation  of  Easement. 

301.  Exception  to  Rule  Requiring  Consistency. 

302.  Possession  to  Begin  with  Unrecorded  Title. 

303.  Possession  as  Lessee  Changed  to  Possession  as  Owner. 

304.  Tlie  Rule  in  Mississippi. 

305.  Ci-editors  Affected  with  Notice. 

306.  Possession  of  Chattels. 

§273.  General  Doctrine. —  The  doctrine   seems   quite 
firmly  established,  by  successive  judicial  decisions,  both  in 


NOTICE   BY   POSSESSION.  151 

this  country  and  in  England,  that  open,  notorious  and  ex- 
clusive possession  of  real  estate,  under  an  apparent  claim  of 
ownership,  is  notice  to  those  who  subsequently  deal  with 
the  title,  of  whatever  interest  the  one  in  possession  has  in 
the  fee ;  whether  such  interest  be  legal  or  equitable  in  its 
nature.^  In  general,  the  possession  upon  which  such  claim- 
ants rely  as  notice  to  purchasers  is  held  under  and  pursuant 
to  an  unrecorded  deed,  or  a  contract  of  purchase,  vrhich  if 
in  writing  is  unrecorded,  and  if  mereh''  a  parol  agreement, 
depends  upon  its  partial  execution,  to  entitle  the  covenantee 
to  specific  performance. 


1  Story  r.  Black  (Mont.),  1  Pac.  Rep.,  1;  Landes  v.  Brant,  10  How., 
348;  McKenzie  v.  PerrU,  15  Ohio  St.,  168;  Jones  v.  Marks,  47  Cal.,  242; 
Ray  V.  Birdseye,  5  Den.,  626;  Cabeen  v.  Breckenridge,  48  111.,  91; 
School  Dist.  V.  Taylor,  19  Kans.,  287;  Jolinson  v.  Clark,  18  Kans.,  157; 
Tankard  V.  Tankai-d,  79  N.  C,  54;  Edwards  v.  Thompson,  71  N.  C,  177; 
Noyes  v.  Hall,  97  U.  S.,  34 ;  Trnesdale  v.  Ford,  37  111.,  210 ;  Dunlap  v.  Wil- 
son, 32  ni.,  517;  Reeves  v.  Ayres,  38  El.,  418;  Keys  v.  Test,  33  HI.,  316; 
BroAvn  v.  Gaffney,  28111.,  149;  Bradley  r.  Snyder,  14  HI.,  263;  lU.  C. 
R.  Co.  V.  McCuUough,  59  lU.,  166;  Tunison  v.  Chamblin,  88  lU.,  378; 
Pell  V.  McEh-oy,  36  Cal.,  268;  Bogue  v.  Williams,  48  lU.,  371 ;  Strickland 
V.  Kirk,  51  Miss.,  795;  Loughridge  v.  Bowland,  52  Miss.,  546;  Moss?'. 
Atkinson,  44  Cal.,  3;  Killey  v.  Wilson,  33  Cal.,  690;  Seai-s  v.  Munson,  23 
la.,  380;  Phillips  v.  Costley,  40  Ala.,  486;  Perkins  v.  Swank,  43  Miss., 
349;  GUdweU  v.  Spaugh,  26  Ind.,  319;  Warren  v.  Richmond,  53  lU.,  52; 
Bank  of  Orleans  r.  Flagg,  3  Barb.  Ch.,  316;  Baldwin  v.  Johnson,  Saxt. 
Ch.,  441;  Baynard  V.  Norris,  5  GUI,  468;  Ringold  v.  Bryan,  3  Md.  Ch. 
Dec,  488;  Taylor  v.  KeUy,  3  Jones,  Eq.,  240;  Doyle?;.  Stevens,  4  Mich., 
87;  Emmons  v.  Murray,  16  N.  H.,  385;  MuUins  v.  Wimberley,  50  Tex., 
457 ;  McLaughlin  v.  Shepherd,  32  Me.,  143;  Hardy  v.  Summers,  10  GiU  & 
J.,  316;  Wickes  v.  Lake,  25  Wis.,  71;  McCuUoch  v.  Cowher,  5  Watts  & 
Serg.,  427;  Woods  r.  Farmere,  7  W^atts,  385;  Bailey  r.  ^\^lite,  13  Tex., 
114 ;  Davies  v.  Hopkins,  15  111.,  519 ;  Lea  v.  Polk  County  Copper  Company, 
21  How.,  493;  Hughes  v.  United  States,  4  Wall.,  232;  Shumate  v.  Reavis, 
49  Mo.,  333;  Chesterman  t\  Gardner,  5  Johns.  Ch.,  29;  Tuttle  v.  Jack- 
son, 6  Wend.,  213;  Morton  v.  Robards,  4  Dana,  258;  Macon  u.  Sheppard, 
2  Humph.,  335;  Burt  v.  Cassety,  12  Ala.,  734;  Dixon  v.  Doe,  1  Sm.  & 
Marsh.,  70;  Johnston  v.  Glancy,  4  Blackf.,  94:  Harris  v.  Ai-nold,  1  R.  I., 
125;  Cunningham  v.  Buckingham,  1  Ohio,  264;  Rogers  v.  Jones,  8  N. 
H.,  264;  Bailey  v.  Richardson,  15  Eng.  L.  &  Eq.,  218;  Havens  v.  Bliss. 
26  N.  J.  Eq.,  363. 


152  NOTICE   BY    POSSESSION. 

§274.  Modified  by  Registry  Laws. —  The  application  of 
this  doctriiio  to  possession  under  uiu'cgistered  conveyances, 
has,  it  is  true,  been  somewhat  modiiied  by  the  registry 
laws,^  and  in  one  state,  at  least,  it  has  been  so  frequently 
held,  under  the  recording  act  of  that  commonwealth,  that 
l)ossession  under  an  unrecorded  deed  will  not  amount  to 
notice  of  the  title  by  which  the  possessor  holds,  that  it  may 
novr  be  regarded  as  a  settled  rule  of  property  within  that 
jurisdiction.-  There,  the  statute  provides  in  substance  that 
nothing  short  of  actual  notice  of  an  unrecorded  deed  will 
suffice  to  invalidate  the  title  of  a  subsequent  purchaser  or 
mortgagee,  and  it  is  held  that  proof  of  such  notice  is  not 
made  out,  simply  by  showing  that  the  grantee  under  the 
unrecorded  instrument  was  in  open  occupation  of  the  land, 
and  the  subsequent  purchaser  had  knoAvledge  of  such  occu- 
pation. Possession  is  at  most  considered  as  sufficient  to  put 
subsequent  purchasers  upon  inquiry,  and  under  the  strict 
provisions  of  the  statute,  this  is  not  equivalent  to  notice, 
for  the  reason  that  the  purchaser  is  not  bound  to  inquire 
beyond  the  pubhc  record  of  conveyances,  and  his  failure  to 
do  so  does  not  cast  upon  him  either  an  imputation  of  fraud 
or  gross  negligence.  In  any  event  mere  possession  is  not 
conclusive  upon  the  purchaser.  The  effect  is  to  put  him 
upon  inquiry,  and  if  it  can  be  shown  that,  prior  to  purchase 
from  the  holder  of  the  record  title,  he  followed  up  the  in- 
quiry in  good  faith,  the  presumption  arising  from  possession 
by  another  will  be  overcome.^ 

§  275.  Evidence  of  Actual  Notice. —  Under  a  statute  of 
precisely  similar  import,  in  the  state  of  Missouri,^  the  su- 
preme court,  by  repeated  decisions,  have  settled  the  law 

iFIagg  V.  Mann,  2  Sumn.,  486;  Harris  v.  Ai-nold,  1  R.  I.,  126;  Hewes 
V.  Wiswall,  8  Greenl.,  94;  Emmons  v.  Mmrray,  16  N.  H.,  385. 

2  Sibley  v.  Leffingwell,  8  Allen,  584;  Dooley  v.  Wolcott,  4  Allen,  406; 
Mara  v.  Pierce,  9  Gray,  306;  Pomroy  v.  Stevens,  11  Mete,  244.  But 
see  Cunningham  v.  Pattee,  99  ]Mass.,  248. 

!>Fair  v.  Stevenot,  29  Cal.,  486;  Thompson  v.  Pioche,  44  Cal.,  508. 

<Wag.  Stat.,  p.  277,  §26. 


NOTICE  BY   POSSESSION.  153 

upon  a  construction  of  the  statute,  directly  opposite  to  that 
adopted  b}^  the  court  of  last  resort  of  Massachusetts.^  And 
even  m  Beatie  v.  Butler,-  where  a  similar  construction  is  mven 
to  the  statute  as  in  the  Massachusetts  cases,  Judge  Scott, 
in  rendering  the  opinion,  saj^s:  "The  fact  that  another  is 
in  possession,  when  known  to  a  purchaser,  may  be  submitted 
to  a  jury,  in  connection  with  other  cu^cumstances,  to  show 
that  he  had  actual  notice  of  an  adverse  title."  And  aaain, 
"  Actual  notice  does  not  require  positive  and  certain  knowl- 
edge, such  as  seeing  the  deed ;  but  that  is  sufficient  notice, 
if  it  be  such  as  men  usually  act  upon  in  the  ordinary  affairs 
of  life.  When  it  is  shown  that  purchasers  are  affected  with 
a  knowledge  of  such  circumstances,  there  the  foundation  is 
laid  from  which  the  inference  of  actual  notice  may  be 
drawn."  ^  That  portion  of  the  opinion  of  the  learned 
judge  which  repudiates  the  doctrine  that  actual  notice  may 
be  derived  from  the  possession  of  the  premises  by  the  ad- 
verse claimant  is  a  mere  dictum  which  does  not  meet  with 
the  concurrence  of  his  associate.* 

§  276.  Sufficient  to  Put  Purchaser  Upon  Inquiry. —  In 
a  subsequent  case,^  heard  before  a  full  bench,  this  question 
w^as  perhaps  more  directly  involved,  and  Judge  Leoxakd, 
deUvering  the  opinion,  while  reversing  and  remanding  the 
cause  for  error  in  instructing  the  jury,  in  substance,  that 
possession  raised  the  legal  presumption  of  title  in  the  pos- 
sessor, uses  the  following  language,  which  met  the  full  con- 
currence of  a  majority  of  the  court :  "  The  fact  of  possession 
might  be  presumed  to  have  been  within  the  pm^haser's 
Ivuowledge ;  ^  and  if  knowledge  is  brought  home  to  the  pur- 

>  Vaughan  v.  Ti-acy,  23  Mo.,  415 ;  S.  C,  25  Mo.,  318.  Contra,  Beatie  v. 
Butler,  21  Mo.,  313. 

-  Supra. 

3 See,  also,  Curtis  v.  Mundy,  3  Mete,  405. 

^Sepai-ate  opinion  by  Judge  EYLA^"D,  in  same  case,  21  Mo.,  325. 

5  Vaughan  r.  Ti-acy,  22  Mo.,  415. 

6Noyes  v.  Hall,  97  U.  S.,  34;  Cabeen  v.  Breckenridge,  48  Bl.,  91; 
Brown u.  Gaffuey,  28  Bl.,  149 ;  Farmers'  Loan,  etc.,  Co.  v.  Maltby,  8  Paige, 
361;  Doyle  i'.  Stevens,  4  IVIich.,  87. 


154  NOTICE   BY   POSSESSION. 

chaser,  tliat  a  third  persoii  is  in  the  possession  and  apparent 
ownership  of  the  land,  it  ought,  under  ordinary  circum- 
stances, to  be  deemed  sufficient  information  to  the  second 
purchaser  that  the  jDosscssor  is  the  owner  in  fee,  under  a 
title  derived  from  a  former  owner."  Later  cases  by  the 
same  court,  as  cited  in  the  note,  fully  sustain  this  \'iew  of 
the  law.^ 

§  277.  Same. —  Under  a  statute  similar  to  that  of  the 
states  of  Massachusetts  and  Missouri,  the  supreme  com't  of 
the  state  of  Maine,  although  denying  the  doctrine  of  con- 
structive notice  of  unregistered  conve3'ances  made  subse- 
quent to  the  enactment  of  the  law,  by  possession  under 
such  conveyances,  have  taken  substantially  the  same  vicAV 
of  what  may  be  considered  actual  notice  as  the  supreme 
court  of  Missouri.-  That  possession  and  improvement  by 
the  claimant,  brought  to  the  knowledge  of  the  purchaser, 
where  such  possession  is  taken  under  the  prior  purchase,  is 
sufficient  to  put  the  subsequent  purchaser  upon  inquiry  as  to 
the  character  of  such  possession ;  and  if  the  inquiry  be  made, 
it  will  be  presumed,  in  the  absence  of  evidence  to  the  con- 
trary, that  it  resulted  in  knowledge  of  any  title  or  interest 
in  the  premises,  pursuant  to  Avhich  the  occupant  held.* 

§  278.  Effect  of  Knowledge  of  Possession.— Where  the 
provisions  of  the  recording  act  are  less  strict,  with  respect  to 
the  kind  of  notice  required  to  affect  subsequent  purchasers, 
and  simplv  provide  that  those  who  purchase  upon  the 
faith  of  the  record,  but  with  notice  of  prior  legal  or  equi- 
table titles,  there  seems  to  be  no  question  but  that  the  pos- 
session of  such  claimant  will  as  effectually  notify  subsequent 

^  Infra,  §278. 

2 See  Hanly  v.  Morse,  32  Me.,  28T;  Boggs  v.  Anderson,  50  Me.,  161: 
Clark  V.  Bosworth,  51  Me.,  528;  Beal  v.  Gordon,  55  Me.,  482;  Sixtfford 
V.  Weston,  29  Mo.,  140;  Hull  v.  Noble,  40  Me.,  459. 

3 Butler  V.  Stevens,  26  Me.,  484;  M'Laiighlin  v.  Shepherd,  32  id.,  143; 
Hackwlth  v.  Damron,  1  Mon.,  235;  Johnson  v.  Clark,  18  Kan.,  157; 
Watkins  v.  Edwards.  23  Tex.,  443:  lU.  Cent.  R.  R.  v.  McCuUough,  59 
m.,  1G6;  Rogers  v.  Hussey,  36  Iowa,  664;  Smith  v.  Gibson,  15  Minn., 
89;  Tunison  v.  Chamblin,  88  lU.,  378. 


NOTICE   BY   POSSESSIOIf.  155 

parties  as  any  other  circumstance  the  knowledge  of  which 
may  be  brought  home  to  them.^ 

§279.  Tohmtary  Ignorance. —  The  theory  upon  which 
the  cases  proceed  in  holding  possession  to  be  implied  notice, 
or  evidence  of  notice,  which  can  only  be  overcome  by  a  pur- 
chaser by  proof  that  the  inquiries  suggested  by  this  circum- 
stance were  followed  out  without  disclosing  any  title  or 
interest  adverse  to  his  grantor,  is  not  that  there  is  anything 
corrupt  or  vicious  in  the  acquisition  of  title  to  premises 
occupied  by  another  than  the  grantor.-  The  only  effect 
which  the  occupancy  of  the  premises  can  have  is  to  excite 
inquiry  with  reference  to  the  title ;  and  any  failure  on  the 
part  of  such  pm-chaser  to  make  the  inquiry  is  regarded  as 
an  intentional  avoidance  of  the  truth  which  would  have 
been  disclosed.  His  ignorance  being  voluntary,  a  purchase 
by  him  would  be  as  clearly  fraudulent  as  though  he  had 
purchased  with  full  knowledge  of  the  adverse  claim,  and 
with  the  express  intention  of  circumventing  the  party  in 
possession.* 

iFarnsworth  v.  Cbilds,  4  Mass.,  637;  Norcross  v.  Widgery,  2  Mass., 
506;  Davis  v.  Blunt,  6  Mass.,  487;  Prescott  v.  Heai'd,  10  Mass.^  60; 
Govomeur  v.  Lynch,  2  Paige,  300;  Sailor  v.  Hertzog,  4  A^^lart.,  259; 
Lightner  v.  Mooney,  10  Watts,  407 ;  Knox  v.  Thompson,  1  Littell,  350 ; 
Kerr  r.  Day,  14  Pa.  St.,  112;  Jacques  v.  "Weeks,  7  AVatts,  261;  Lewis 
V.  Bradford,  10  Watts,  67;  Boggs  v.  Vai-ney,  6  Watts  &  Serg.,  469; 
Dixon  V.  Doe,  1  Sm.  &  Marsh.,  70;  Wilty  v.  Hightower,  6  id.,  345; 
Macon  v.  Sheppard,  2  Humph.,  335;  Taylor  v.  Lowenstein,  50]\Iiss.,  278; 
GtoSv.  Ramsey,  19  Minn.,  44;  Morrison  v.  March,  4  Minn.,  422;  Dunks 
V.  Fuller,  32  Mich.,  242;  Forest  v.  Jackson,  56  N.  H.,  357;  Daniels  y. 
Davidson,  16  Ves.,  249;  Taylor  v.  Stibbert,  2  Ves.,  437;  Ti-uesdale  v.  Ford, 
37  ni.,  210;  Dunlap  v.  Wilson,  32  id.,  517;  Bradley  v.  Snyder,  14  id., 
263;  Tankard  v.  Tankard,  79  N.  C,  54;  Webber  v.  Taylor,  2  Jones, 
Eq.,  9;  Taylor  v.  Kelly,  3  id.,  240;  Edwards  v.  Thompson,  71  N.  C,  177; 
School  Dist.  V.  Taylor,  19  Kans.,  287;  Emmons  v.  Murray,  16  N.  H.,  385. 

•■^Cook  V.  Travis,  22  Barb.,  338;  Faust  v.  Smith,  23  N.  Y.,  252. 

3  Grimston  V.  Carter,  3  Paige,  Ch.  421,— Opinion  of  the  Chancellor,  p.  426 ; 
Flaggr.  Mann,  2  Sumn.,  486,  554 ;  4  Kent,  Com.,  179, 180 ;  Daniels  v.  David- 
son, 16  Ves.,  249;  Taylor  v.  Stibbert,  2  Ves.  Jr.,  440;  HaU  v.  Smith,  14 
Ves.,  426;  Crofton  v.  Ormsby,  2  Sch,  &  Lefr.,  595;  Eply  v.  AVitherow,  7 
Watts,  163 ;  Jacques  v.  Weeks,  7  Watts,  261 ;  Buttrick  v.  Holden,  13  Met., 


156  NOTICE   BY   POSSESSION. 

§  280.  Cliaracter  of  Possession. —  It  is  not  always  a 
question  of  easy  determination,  whether  the  possession  is 
sufficiently  distinct  and  unequivocal  to  give  notice  to  sub- 
sequent parties.  It  has,  however,  been  held  that  where  one 
acre  was  purchased  in  a  tract  of  twenty  acres,  and  set  with 
willows,  which  the  purchaser  cut  regularly  every  year,  for 
the  purpose  of  carrying  on  his  business  of  basket-making, 
that  such  possession  and  acts  of  ownership,  under  a  deed 
which  the  purchaser  had  neglected  to  record,  was  sufficient 
to  give  notice  of  his  title  to  a  purchaser  at  sheriff's  sale,  of 
the  twenty-acre  tract  of  wliich  his  own  acre  originally 
formed  a  part,^ 

355;  Sargeant  v.  Ingersoll,  7  Pa.  St.,  340;  Smith  v.  Gibson,  15  Minn., 
89;  Bogue  v.  Williams,  48  lU.,  371;  O'Rom-ke  v.  O'Connor,  39  Cal.,  442; 
Moss  V.  Atkinson,  44  Cal.,  3;  Rogers  v.  Jones,  8  N.  H.,  264;  Hull  v.  No- 
ble, 40  Me.,  459;  Mullins  v.  Wimberly,  50  Tex.,  457;  Strickland  v.  Kirk, 
51  Miss.,  795;  Brown  v.  VoLkenning,  64  N.  Y.,  76;  Van  Kem-en  v.  Cent. 
R.  R.,  38  N.  J.  L.,  165;  Tunnison  v.  Chamblin,  88  111.,  378;  WaiTen  v. 
Sweet,  31  N.  H.,  332;  Littleton  v.  Giddings,  47  Tex.,  109;  Shepai-dson  v. 
Stevens,  71  111.,  646;  Maul  v.  Rider,  59  Pa.  St.,  167;  Baker  v.  Bliss,  3i) 
N.  Y..  70;  Stearns  v.  Gage,  79  N.  Y.,  103;  Buck  v.  Paine,  50  Miss.,  048; 
Holmes  r.  Powell,  8  De  G.,  M.  &  G.,  572. 

1  Ki-ider  v.  Lafferty,  1  Wliart.,  303.  See  Hatch  v.  Bigelow,  39  111.,  546, 
infra,  §  288  et  seq. 

In  Unger  v.  Mooney,  63  Cal.,  586,  the  question  was  as  to  the  notoriety 
of  the  adverse  possession  of  defendant  as  jsurchaser  of  the  entire  tract 
from  one  of  two  tenants  in  common  being  sufficient  to  give  notice  to 
liis  co-tenant  that  the  holding  Avas  hostile  to  the  latter's  claim.  It  was 
decided  that  the  execution  and  delivery  of  the  deed  by  the  co-tenant 
w^as  an  ouster  or  disseizin,  and  that  the  subsequent  occuijation  by  the 
grantee,  for  the  statutory  period,  paying  the  taxes  and  collecting  the 
rents  and  profits  without  accounting  to  the  plaintiff,  was  sufficient 
notice  to  Mm  to  bring  the  case  witliin  the  rule  governing  adverse  pos- 
session that  requires  it  to  be  open  and  notorious.  See,  also,  Thompson 
V.  Pioche,  44  Cal.,  508;  Trustees,  etc.,  v.  Kirk,  84  N.  Y.,  220;  Culver  v. 
Rhodes,  87  N.  Y.,  354;  Abell  v.  Harris,  11  GiU  &  J.,  371 ;  Portis  v.  Hill, 
3  Tex.,  278;  Grim  v.  Curley,  43  Cal.,  250;  Miller  v.  Myles,  46  Cal.,  535; 
Prescott  V.  Nevens,  4  Mason,  330;  Clarke  v.  Courtney,  5  Peters,  310; 
Clymer's  Lessee  v.  Dawkins,  3  How. ,  690 ;  Culler  v.  Motzer,  13  Serg.  & 
R.,  358;  Home  v.  HoweU,  46  Ga.,  9;  Long  v.  Stapp,  49  Mo.,  508;  Smith 
V.  Yule,  31  Cal.,  180;  Pell  v.  McEhroy,  36  Cal.,  368. 


NOTICE   BY    POSSESSION,  157 

§  281.  Possession  by  Teuaut. —  As  to  wlietlier  a  pur- 
cliaser  may  be  aiTectecl  with  notice  of  a  claim  or  title  ad- 
verse to  his  grantor,  by  possession,  when  the  owner  of  such 
adverse  title  is  not  in  actual  occupancy  of  the  ])remises  in 
question,  the  authorities  in  this  country  seem  to  be  in  con- 
flict. In  England  the  weight  of  authority  inclines  upon 
the  side  of  restricting  the  operation  of  such  possession  to 
notice  of  the  title  of  the  actual  occupant.  The  possession 
of  a  tenant  under  a  lease  is  notice  simply  of  his  tenancy, 
and  not  of  his  landlord's  title.^ 

§  282.  Notice  of  Interest  Claimed  hj  Occupant. —  In 
Beatie  v.  Butler,^  it  is  held  that  possession  by  the  tenant  of 
a  mortgagor  was  not  notice  of  an  agreement  between  the 
mortgagor  and  mortgagee,  that  the  latter  should  not  de- 
mand of  the  former  a  strict  compliance  with  the  terms  of 
his  mortgage;  but  the  same  conclusion  must  have  been 
reached  had  the  mortgagor  himself  been  in  possession. 
The  court,  in  deciding  the  case  of  Flagg  v.  Mann,*  also  in- 
clines to  follow  the  English  rule  restricting  possession  in  its 

'Barnhart  v.  Greenshields,  28  Eng.  L.  &  Eq.,  77;  2  Sug.  on  Vend., 
g^  763,  763;  Smith  v.  Dall,  13  Cal.,  510;  Jones  v.  Smith,  1  Ha.,  43;  Ox- 
with  V.  Plummer,  2  Vern.,  636.  But  see  infra,  §§  281r-6 ;  Daubenspeck  v. 
Piatt,  22  Cal. ,  330.  But  the  ijurchaser  is  bound  by  all  the  equities  sub- 
sisting between  the  tenant  and  the  vendor,  whether  it  be  an  interest 
connected  with  his  tenancy  or  one  claimed  under  a  collateral  agi'eement. 
McMechan  v.  Griffing,  3  Pick.,  149;  Disbrow  v.  Jones,  Han-ing.  Ch., 
48;  Knight  v.  Bowyer,  2  D.  &  J.,  450;  Allen  v.  Anthony,  1  Meriv.,  282; 
PoweU  V.  Dillon,  2  Ba.  &  Be.,  416.  Contra,  Kendall  v.  Lawrence,  22 
Pick.,  540;  Bush  v.  Golden,  17  Conn.,  594;  Wilhams  v.  Sprigg,  6  Ohio 
St.,  585;  Matthews  u.  DemeiTitt,  22  Me.,  312;  Dawson  v.  Danbury  Bank, 
15  Mich.,  489.  Where  a  lessee  in  possession  makes  a  contract  to  pur- 
chase, Ms  possession  has  been  held  to  be  notice  of  his  rights  as  purchaser. 
Taylor  v.  Stibbert,  2  Ves.,  437;  Wilbraham  v.  Livesey,  18  Beav.,  206. 
But  see  Hanbury  v.  Litchfield,  2  My.  &  K.,  629, 

2  21  Mo.,  313. 

3  2  Sumn.,  557;  Daniels  v.  Davison,  16  Ves.,  249  (§  279,  n.  2);  Allen 
V.  AjQthony,  1  Meriv.,  282;  Meux  v.  Maltby,  2  Sw.,  281;  Powell  v.  Dil- 
lon, 2  Ball  &  B.,  416;  Lewis  v.  Bond,  18  Beav.,  85;  Moreland  v.  Rich- 
ardson, 24  id.,  33;  Hanbury  v.  Litchfield,  3  My.  &  K.,  629;  Jones  v. 
Smith,  1  Hare,  43. 


158  NOTICE   BY   POSSESSION. 

effect  as  notice,  to  the  interest  claimed  by  the  actual  occu- 
pant. 
§  283.  Notice  of  Interest  of  Occupant's   Creditors. — 

■Whore  a  fraudulent  conveyance  was  made,  and  the  grantor 
remained  in  possession  by  his  tenants,  it  was  held,  in  a  con- 
test between  the  creditors  of  the  fraudulent  grantor  and 
the  purchasers  at  an  execution  sale  of  the  land  as  the  prop- 
erty of  the  fraudulent  grantee,  that  such  possession  was 
notice  of  the  title  which  still  remained  in  the  grantor,  sub- 
ject to  his  creditors'  claims.^ 

§  284.  Tenant's  Occupancy,  Notice  of  Landlord's  Title. 
So  where  the  land  was  located  in  a  new  and  heavily  tim- 
bered country,  and  was  left  by  the  equitable  owners  in 
charge  of  a  tenant,  who  cut  timber  from  the  land,  and  exer- 
cised such  other  acts  with  respect  to  the  premises  as  left 
the  impression  in  the  neighborhood  that  the  land  belonged 
to  the  absent  landlord,  it  was  held  that  this  was  sufficient 
notice  to  any  one  subsequentl}'"  dealing  with  the  title  to  put 
him  upon  inquiry .^ 

§285.  Same. —  It  was  also  held  in  "Wright -y.  "Wood,^ 
where  the  plaintiff  claimed  under  a  deed  from  the  heirs  of 
the  former  owner,  and  the  defendant  under  an  unrecorded 
deed  from  the  ancestor,  that  the  possession  of  one,  either 
in  person  or  by  his  tenant,  was  notice  of  an  unrecorded 
title ;  but  it  was  also  held  that  the  possession  of  a  mere 
intruder  was  not  notice  of  the  title  of  a  stranger. 

§  286.  Consistency  of  Foregoing  Doctrine. —  There 
seems  no  good  reason  why,  if  it  be  admitted  tliat  possession 
is  notice,  or  evidence  of  notice,  there  should  be  any  modifi- 
cation of  the  rule  that  possession  by  the  tenant  is  the  pos- 

iHood  V.  Fahnestock,  1  Pa.  St.,  470. 

2  Wickes  V.  Lake,  25  Wis.,  71 ;  Dickey  v.  Lyon,  19  la.,  544;  Pittman  v. 
Gaty,  10  111.,  186;  Met.  Bank  v.  Godfrey,  23  lU.,  579.  Contra  (Eng.),  3 
Leading  Cases  in  Equity  (4tli  Am.  ed.),  p.  133;  Jones  v.  Smith,  1  Hare, 
43;  Barnhart  v.  Greenshields,  9  Moore,  P.  C,  18;  Hanbury  v.  Litclifield, 
2  M.  &  K.,  629;  Flagg  v.  Mann,  2  Sumn,,  486;  Beatie  v.  Butler,  21  Mo., 
312;  Veazie  v.  Parker,  23Me.,170;  Jacques  v.  Weeks,  7  Watts,  261. 

3  23  Pa.  St.,  120. 


NOTICE   BY   POSSESSION.  159 

session  of  his  landlord.  If  tlie  purchaser  has  followed  up 
the  suggestion  which  the  possession  of  the  premises  by  a 
third  party  implies,  he  will  inquire  of  the  actual  occupant, 
with  a  probabiUty  of  learning  that  he  holds  as  lessee  of  an- 
other. Inquiry  cannot  safely  stop  here ;  for  the  next  step 
suggested  .by  the  circumstances  would  be  to  inquire  of  the 
landlord.  But  should  the  lessee  refuse  to  disclose  the  name 
of  his  lessor,  or  falsely  lay  claim  to  the  fee,  it  can  hardly 
be  required  of  the  purchaser  to  look  further.  Having  in- 
quired of  the  person  to  whom  aU.  the  circumstances  point 
as  best  qualified  to  impart  information  concerning  the  title 
of  which  possession  is  the  sole  emblem,  he  may  safely  rely 
upon  the  information  thus  acquired  as  absolutely  true. 
The  jDossession  by  which  the  landlord  holds  through  a  tenant 
may  be  said  to  be  constTuctive^  and,  for  some  purposes,  mil 
be  distinguished  from  actual  possession,  and  in  this  respect 
there  is  a  seeming  conflict  between  the  cases  that  give  effect 
to  the  tenant's  possession  as  notice  of  the  landlord's  rights, 
and  those  which  Lay  down  the  rule  that  possession  must  be 
actual.^  But  the  conflict  is  only  apparent  where  the  courts 
are  inclined  to  disregard  terms  when  their  use  creates  dis- 
tinctions which  are  of  no  value  in  determining  rights.  For 
all  the  purposes  of  notice,  the  possession  of  the  tenant  may 
fairl}^  be  regarded  as  the  actual  possession  of  tlie  landlord. 
It  is  suflB.cient  to  put  the  purchaser  upon  inquiry,  and,  in  the 
absence  of  evidence  to  the  contrary,  it  "uill  be  presumed 
that  inquiry  of  the  tenant  will  lead  to  knowledge  of  the 
truth.2 

§  287.  Possession  No  Evidence  of  Title  in  Stranger. — 
Where,  however,  at  the  time  of  the  pm-chase  there  is  one 

1  Infra,  §  288  et  seq. 

2 Edwards  v.  Thompson,  71  N.  C,  177;  Cunningham  v.  Pattee,  99 
]\Iass.,  248;  O'Eourke  v.  O'Connor,  39  Cal.,  442;  Thompson  v.  liiche,  44 
Cal.,  508;  Kerr  v.  Day,  14  Pa.  St.,  112;  Nelson  v.  Wade,  21  la.,  49; 
Dicky  V.  Lyon,  19  la. ,  544 ;  supra,  %  284.  See,  also,  Feilden  v.  Slater,  L. 
R.,  7  Eq.,  523;  Parker  v.  Whyte,  1  H.  &  M.,  167;  Wilson  v.  Hart,  L.  R., 
1  Ch.,  463;  Clements  v.  WeUes,  L.  R.,  1  Eq.,  200;  Crofton  v.  Ormsby,  3 
Sch.  &  Lef.,  583. 


160  NOTICE   BY   POSSESSION. 

in  possession,  -n-lio  not  only  holds  adversely  to  tlie  grantor, 
but  to  the  equitable  owner,  or  grantee  under  an  unrecorded 
instrument,  in  a  subsequent  contest  concerning  the  title, 
this  possession  can  only  be  availed  of  as  notice  by  such  pos- 
sessor and  those  in  whose  right  he  pretends  to  hold.  It 
could  not  be  used  either  as  notice  or  evidence  of  notice  of 
any  title  or  interest  claimed  by  a  stranger ;  for  the  inquiry 
which  it  might  be  presumed  to  excite  would  not  in  the 
natm-al  course  of  events  develop  such  stranger's  title.^ 

§  288.  Must  be  Actual,  Notorious  and  Continuous. — 
Subject  to  the  doctrine  that  possession  may  be  held  by  the 
owner  of  the  fee  through  his  tenant  or  lessee,  it  is  held  that 
the  possession  upon  which  the  claimant  relies  as  giving  no- 
tice of  his  rights  must  be  actual,  open  and  notorious,  and, 
so  far  as  is  consistent  with  the  uses  for  which  the  pro]3erty 
is  occupied,  continuous?  It  is  not  to  be  understood,  how- 
ever, when  the  one  in  possession  resides  upon  the  land,  that 
his  temporary  absence  from  home  will  aif ect  to  any  extent 
whatever,  the  character  of  his  possession.  JS'or,  upon  the 
other  hand,  that  his  personal  presence  thereon  at  stated 
intervals,  when  such  presence  is  transitory,  and  entirely  dis- 
connected with  any  use  of  the  land,  would  be  such  posses- 
sion as  would  charge  purchasers  or  incumbrancers  with 
notice  of  his  title.'^ 

1  Wright  V.  Wood,  23  Pa.  St.,  120. 

2 Brown  v.  Volkemiing,  64  N.  Y.,  76;  Kendall  v.  Lawi-ence,  23  Pick., 
540;  Truesdale  v.  Ford,  37  111.,  210;  Blankensbip  v.  Douglass,  26  Tex., 
225 ;  Ely  v.  Wilcox,  20  Wis.,  523 ;  Patten  v.  Moore,  32  N.  H.,  382 ;  Havens 
V.  Dale,  18  Cal.,  359;  Eogers  v.  Jones,  8  N.  H.,  264;  WiUiams  v.  Sprigg, 
C  Ohio  St.,  585;  Holmes  v.  Stout,  10  N.  J.  Eq.,  492;  Coleman  v.  Bark- 
lew,  27  N.  J.  Law,  357 ;  Wickes  v.  Lake,  25  Wis.,  71 ;  Troy  City  Bank  v. 
Wilcox,  24  id.,  071. 

3 Kendall  v.  Lawrence,  22  Pick.,  540;  Holmes  v.  PowcU,  8  De  G.,  M.  & 
G.,  572;  Noycs  v.  Hall,  7  Otto,  34;  Cabeen  v.  Breckenridge,  48  111.,  91; 
Dunlap  V.  Wilson,  32  id.,  517;  Bradley  v.  Snyder,  14  id.,  263;  Tankard 
v.  Tanlvai-d,  79  N.  C,  54;  Bogaie  v.  Williams,  48  lU.,  371 ;  Martin  v.  Jack- 
son, 3  Casey,  504 ;  Meehan  v.  Williams,  12  Wright,  238 ;  McMechan  v. 
Griffing,  3  Pick.,  149.  See,  also,  MUes  v.  Langley,  1  Russ.  &  M.,  39;  2 
id.,  626;  Jones  v.  Smith,  1  Hare,  43;  Boggs  v.  Varner,  6  W.  &  Serg., 
469;  Hewes  v.  Wiswell,  8  Me.,  94. 


KOTICE    BY    POSSESSION.  161 

§  289.  Occupancy  by  Chiircli  Society. —  But  where  there 
had  been  a  parol  conveyance  to  a  church  society,  of  a  por- 
tion of  a  tract  of  land,  which  conveyance  was  followed  by 
the  erection  of  a  building  suitable  for  public  worship,  and 
was  so  used  by  the  society,  this  was  held  as  sufficient  notice 
to  a  subsequent  purchaser  of  the  original  tract,  including 
the  church  lot,  that  the  society  had  an  interest  in  such  prop- 
erty.^ 

§  2  90.  Exclusive.  —  Another  essential  feature  of  the 
possession  which  is  set  up  as  notice  to  a  subsequent  pur- 
chaser is  that  it  must  be  exclusive,  at  least  so  far  as  such 
subsequent  purchasers  grantor  is  concerned.-  Accordingly , 
where  a  father  conveyed  to  his  son,  upon  certain  conditions, 
an  undivided  one-third  of  a  farm,  which  was  at  the  time 
occupied  by  them  as  tenants  in  common,  and  the  son  re- 
moved from  the  farm  during  the  life-time  of  the  father,  who 
remained  in  sole  possession,  it  was  held  that  the  possession 
of  the  father  would  not  be  notice  to  parties  to  whom  the 
son  subsequently  mortgaged  his  interest,  unless  notice  could 
be  brought  home  to  the  mortgagees,  at  the  time  such  mort- 
gage was  given,  not  only  of  the  father's  possession,  but  that 
it  was  held  adversely  to  his  co-tenant.'^  This  was  so  held 
upon  the  familiar  principle  that  the  possession  of  real  estate 
by  one  of  several  tenants  in  common  will  not  be  construed 
as  adverse  to  his  co-tenants,  for  the  reason  that  such  posses- 
sion is  perfectly  consistent  with  the  extent  of  his  own  inter- 
est in  the  land.  To  render  his  occupancy  adverse  to  those 
who  have  an  undivided  interest  in  the  premises,  there  must 
be  positive  and  overt  acts  connected  with  his  exercise  of 
ownership  such  as  will  manifest  an  unmistakable  intention 
on  his  part  to  exclude  his  co-tenants  from  the  enjoyment  of 
the  property ;  otherwise  his  possession  will  be  regarded  not 

1  Macon  v.  Sheppard,  2  Humph.,  335. 

2KendaU  v.  Lawi-ence,  22  Pick.,  540;  Smith  v.  Yule,  31  Cal.,  180; 
Bell  V.  TwiUght,  23  N.  H.,  500;  Wright  v.  Wood,  11  Hairis,  120,  130-31. 
3Buckmaster  v.  Needham,  22  Vt.,  617. 
11 


1G2  NOTICE   BY   POSSESSION. 

only  as  a  declaration  of  his  own  proprietary  rights,  but 
those  of  his  co-tenants  as  well.^ 

§  291.  Unequivocal. —  So  the  possession  must  be  unequiv- 
ocal and  easily  distinguished  from  that  of  the  grantor  or 
any  one  else.  It  is  not  enough,  where  one  has  purchased 
adjoining  -woodland,  that  he  repairs  the  fences,  removes  di- 
lapidated buildings,  clears  off  rubbish  and  depastures  his 
cattle  upon  the  newly  acquired  land.  These  acts  are  too 
disconnected  in  their  character  to  serve  as  notice  of  title. 
It  would  be  improbable  that  a  stranger,  by  looldng  at  the 
land  before  purchasing,  would  gain  such  a  knowledge  of 
these  detached  acts  of  ownership  as  to  put  him  upon  in- 
quiry as  to  why  one  Avho,  so  far  as  appeared  by  the  record, 
was  a  stranger  to  the  title,  should  be  exercising  this  control 
over  the  property.- 

§  292.  Doubtful  in  Extent. —  So  where  a  party  had  an 
equitable  title  to  one-half  of  a  tract  of  land,  which  was  to 
be  divided  by  a  line  drawn  through  the  tract  dividing  it 
into  equal  portions,  different  from  the  division  made  by  the 
government  survey,  but  there  was  no  proof  that  such  line 
was  ever  run  between  the  two  portions,  and  there  were  no 
monuments  indicating  the  boundaries  between  the  two  por- 
tions, and  no  proof  of  actual  occupancy  or  cultivation  up 
to  such  imaginary  line,  it  was  held,  in  a  contest  between 
such  equitable  owner  and  an  innocent  purchaser  of  the  op- 
posite half  of  the  tract  as  designated  by  the  description  in 
the  government  sm-vey,  that  possession  of  the  portion 
claimed  by  the  equitable  owner  could  not  operate  as  notice 
of  his  claim  of  title  beyond  the  government  section  lines.^ 

§  293.  Same. —  So,  also,  where  one  bought  by  parol  a 
corner  of  the  tract  of  land  occupied  by  his  grantor,  paid 

1  Brown  v.  Volkenning,  64  N.  Y.,  76 ;  Wickes  v.  Lake,  25  Wis.,  71 ;  Troy 
City  Bank  v.  WUcox,  24  Wis.,  671;  Martin  v.  Jackson,  27  Pa.  St.,  504; 
Patten  v.  Moore,  33  N.  H.,  382;  Holmes  v.  Stout,  3  Green's  Cli.,  492. 

^McMechan  v.  GrifSng,  3  Pick.,  149;  Brown  v.  Volkenning,  64  N.  Y., 
76;  Hewes  v.  Wiswell,  8  Me.,  94. 

3  Hani-ick  v.  Tliompson,  9  Ala.,  409. 


NOTICE   BY   POSSESSION.  103 

the  purchase  price,  went  into  possession,  and  erected  build- 
ings thereon,  but  without  making  any  survey  or  setting  up 
any  monuments  to  designate  the  boundary  line  between 
the  tracts,  and  the  buildings  upon  the  portion  reserved  by 
the  grantor  had  the  appearance  of  forming  a  part  of  one 
and  the  same  establishment  with  those  erected  by  the  pur- 
chaser, it  was  held  that  such  parol  purchaser,  having  ample 
opportunity  to  protect  his  interest  by  giving  express  notice, 
and  failing  to  do  so,  could  not  avail  himself  of  such  uncer- 
tain and  equivocal  possession,  to  charge  innocent  purchasers 
at  a  sale  under  execution  against  his  grantor,  with  notice  of 
his  equity.^  But  paving  the  sidewalk  in  front  of  the  prem- 
ises, and  putting  up  a  placard  offering  the  lot  for  sale,  was 
held  sufficient  notice  of  title.^ 

§  294.  Possession,  and  Right  Claimed  Conteinporane- 
ons. —  It  is  also  essential  that  the  possession  which  is  to 
operate  as  notice  of  title  shall  be  contemporaneous  with  the 
existence  of  the  right  or  title  it  is  relied  upon  to  establish, 
and  prior  to  the  subsequent  purchase.  Therefore,  it  was 
held  in  an  action  of  ejectment,  that  although  the  defendant 
was  in  actual,  open,  undisputed  and  exclusive  possession  of 
the  premises  in  question,  holding  under  a  quitclaim  deed  at 
the  time  the  same  was  conveyed  to  plaintiff,  such  possession 
was  only  notice  of  such  title  or  interest  as  he  then  had. 
And  it  appearing  that  the  grantor  under  whom  he  claimed 
at  that  time  had  never  been  seized  of  the  property,  a  deed 
of  which  plaintiff  had  no  notice,  made  to  defendant  after 
he  had  quit  the  possession,  being  unrecorded,  the  previous 
possession  would  not  affect  the  subsequent  purchaser  with 
notice  of  his  after-acquired  title.* 

1  Billington  v.  Welsh,  5  Binn.,  129. 

-'Hatch  V.  Bigelow,  39  111.,  564. 

3 Rupert  V.  Mark,  15  111.,  540;  New  York  Life  Ins.  Co.  v.  Cutler,  3 
Sandf.  Ch.,  176;  Oxwith  v.  Plummer,  2  Vern.,  636;  Barnhart  v.  Green- 
shields,  9  Moo.  P.  C,  18;  Scott  v.  Gallagher,  14  Serg.  &  R.,  333.  See  Kerr 
V.  Day,  2  Hai-ris,  112 ;  Wood  v.  Farmere,  7  Watts,  382 ;  Matthews  v.  De- 
nieritt,  22  Me.,  312;  McKeckine  v.  Hoskins,  23  id.,  230;  Rogers  v.  Jones, 
8  N.  H.,  264;  Daubenspeck  v.  Piatt,  22  Cal.,  330.    Contra,  McMechan  v. 


1G4  NOnCE   UY    POSSESSION. 

§  295.  Instance  of  Exception  to  the  Rule. —  Where  A. 
claimed  title  to  a  parcel  of  land  by  successive  conveyances 
under  an  unrecorded  deed,  and  went  into  possession,  and  B., 
a  rival  claimant,  traced  Lis  title  througli  a  prior  deed  wliicli 
was  also  unrecorded  at  the  date  of  the  deed  to  A.,  it  was 
held  that  under  a  statute  giving  priority  to  the  deed  first 
recorded  after  the  lapse  of  six  months,  the  grantee  of  B., 
who  took  during  A.'s  possession,  was  not  thereby  affected 
with  notice  of  any  superior  equity  in  A.,  and  upon  being 
beforehand  with  him  in  getting  his  deed  first  filed  for 
record,  Avould  have  both  the  legal  and  equitable  estates.^ 

§296.  Effect  of  Abandoning  Possession. —  In  cases 
where  the  possession  relied  upon  as  notice  to  the  subsequent 
purchaser,  or  evidence  of  such  notice,  was  prior  to  the  ac- 
quisition of  title  by  him,  and  at  the  date  of  his  deed  had 
been  abandoned  or  surrendered,  it  will  not  have  the  effect 
of  imposing  upon  such  subsequent  party  the  duty  of  making 
inquiry  as  to  the  character  of  such  occupancy.-  In  fact,  if 
the  possession  of  real  estate  may  fairly  be  regarded  as  no- 
tice of  a  claim  of  title,  the  surrender  of  such  possession  by 
a  parity  of  reason  should  be  looked  upon  as  an  abandon- 
ment of  the  claun.  Therefore,  the  mere  circumstance  of 
a  former  adverse  possession  by  one  with  no  apparent  title, 
cannot  in  any  event  have  the  slightest  weight  in  charging 
a  subsequent  purchaser  with  notice  of  any  equities  in  favor 
of  the  possessor.^ 

§297.  Possession  Referred  to  Record  Title. —  Circum 
stances  may  arise  where  one  having  title  to  real  estate,  and 
being  in  possession  under  his  title,  may  nevertheless  be  pre- 
vented from  relying  upon  such  possession  as  notice  to  subse- 

GriflSng,  3  Pick.,  149;  Kendall  v.  La\vi-ence,  23  id.,  540;  Bush  v.  Golder, 
17  Conn.,  594;  Williams  v.  Sprigg,  6  Ohio  St.,  585;  Dawson  v.  Danbuij- 
Bank,  15  Mich.,  489;  Meehan  v.  Williams,  48  Pa.  St.,  238;  Boggs  v.  Vai- 
ner, 6  Watts  &  S.,  469;  Hewes  v.  WisweU,  8  Me.,  94;  Wright  v.  WocC. 
23  Pa.  St.,  120. 

1  Lightner  v.  Mooney,  10  Watts,  407. 

2Ehle  V.  BrowTi,  31  AVis.,  405. 

8  Campbell  v.  Brackenridge,  8  Blackf.,  471. 


NOTICE   BY   POSSESSION.  165 

qiient  parties.  As,  for  example,  where  in  addition  to  the 
title  under  which  the  proprietor  occupies  the  premises,  and 
which  either  rests  in  parol  or  is  unrecorded,  the  record  also 
shows  a  title  under  which  he  would  be  entitled  to  posses- 
sion. In  such  a  case  his  possession  will  be  referred  to  his 
record  title  in  preference  to  an}^  other,  and  the  purchaser 
will  not  be  affected  with  notice  of  any  undisclosed  title  or 
interest  which  the  possessor  may  have.  Thus,  where  a 
mortgagee  is  in  possession  under  a  recorded  mortgage,  a 
purchaser  from  the  mortgagor  will  not  be  by  such  posses- 
sion charged  with  notice  of  an  unrecorded  conveyance  of 
the  equity  of  redemption  from  the  mortgagor  to  the  mort- 
gagee, unless  by  the  terms  of  the  recorded  instrument  the 
mortgagor  was  entitled  to  possession  at  the  time  of  the  last 
purchase.' 

§  298.  Same. —  This  exception  is  obviously  just  and  rea- 
sonable. When  a  party  places  upon  record  an  instru- 
ment, the  provisions  of  which  are  consistent  with  his 
possession  of  the  premises,  while  the  circumstance  of  his 
being  in  possession  undoubtedly  has  a  tendency  to  excite  in- 
quiry in  the  minds  of  those  contemplating  a  purchase,  the 
fact  that  he  has  placed  the  evidence  of  his  right  to  occupy 
upon  record,  where  it  is  accessible  to  the  whole  world,  ar- 
rests inquiry  at  that  point,  and  plainly  informs  the  purchaser 
that  he  may  rest  securely  upon  the  knowledge  ah-eadj^  ob- 
tained.^ 

§  299.  Claim  Inconsistent  with  Record  Title. —  So  the 
possessor  may  b}'^  his  own  act,  in  putting  upon  the  record  an 
instrument  inconsistent  with  title  in  himself,  or  by  execut- 
ing and  delivering  such  a  recordable  instrument,  be  estopped 

iPlumer  v.  Robertson,  6  Serg.  &  R,  179;  Palmer  v.  Bates,  23  Jlinn., 
532;  Great  Falls  Co,  v.  Worster,  15  N.  H.,  412;  Woods  v.  Farniere,  7 
Watts,  382;  Corpman  v.  Baccastow,  84  Pa.  St.,  363;  Smith  v.  Yule,  31 
Cal.,  180;  Wliite  r.  Wakefield,  7  Sim.,  401;  Eice  v.  Rice,  3  Drew,  73; 
Muir  V.  Jolly,  26  Beav.,  143;  Staples  v.  Fenton,  5  Him,  172;  Bell  v. 
Twilight,  23  N.  H.,  500;  Crassen  v.  Swoveland,  23  Ind.,  427;  Newhall  v. 
Pierce,  5  Pick.,  450. 

2  Woods  V.  Farmere,  7  Watts,  385. 


1G6  .  NOTICE    BY    POSSESSION. 

from  reiving  upon  bis  possession  as  evidence  to  subsequent 
purchasers  that  he  claims  title  to  the  premises.'  In  the  case 
cited,  defendant  had  conveyed  the  land  in  question  to  one 
in  whom  he  placed  confidence,  subject  to  a  secret  trust. 
The  deed  of  conveyance  was  absolute  on.  its  face  and  was 
duly  recorded.  Eelying  upon  the  record,  plaintiff  purchased 
the  premises  from  the  apparent  grantee  for  value,  who  in 
making  the  sale  was  guilty  of  a  breach  of  trust.  But  the 
plaintiff  took  without  knowledge  or  notice  of  the  trust, 
although  the  defendant,  after  making  the  conveyance, 
remained  in  possession  and  ojDenly  exercised  acts  of  owner- 
ship over  the  property.- 

§  300.  Notice  of  Reservation  of  Easement. —  A  well 
recognized  exception  to  the  above  doctrine  is  where  posses- 
sion is  relied  upon  as  notice  or  evidence  of  notice  of  a  parol 
reservation  of  an  easement,  upon  a  conveyance  of  the  legal 
title  to  the  premises,  when  such  easement  is  essential  to  the 
enjoyment  of  adjacent  premises,  the  title  to  which  remains 
in  the  grantor  and  possessor  of  such  easement.  As  Avhere 
there  were  two  pieces  of  land  lying  adjacent  to  each  other, 
with  different  owners,  upon  one  of  which  there  was  a  mill, 
and  upon  the  other  a  race  which  was  appurtenant  to  the 
mill.  The  owner  of  the  mill  propert}^  held,  by  a  prior  parol 
reservation,  a  right  to  the  use  of  the  race  on  the  adjacent 
property,  and  upon  his  subsequent  acquisition  of  the  legal 
title  to  both  tracts,  and  his  conveyance  by  deed  with  cove- 

1  Scott  V.  Gallagher,  14  Serg.  &  R„  333. 

2  See,  also,  Newhall  v.  Pierce,  5  Pick.,  450;  New  York  Life  Ins.  Co.  v. 
Cutler,  3  Sandf.  Ch.,  176;  Van  Keuren  v.  Central  R.  R.  Co.  of  New  Jer- 
sey, 38  N.  J.  L.,  165;  ^\Tiite  v.  Wakefield,  7  Sim.,  401;  Rice  v.  Rice,  3 
Drew,  1;  Muir  r.  Jolly,  26  Beav.,  143;  Bloomer  r.  Henderson,  8  Mich., 
395;  Scott  t;.  Gallagher,  14  S.  &  R.,  333;  Dawson  f.  Danbm y  Bank,  15 
Mich.,  489 ;  Cook  v.  Travis,  20  N.  Y.,  400 ;  Reed  v.  Gaimon,  50  N.  Y.,  345. 
Contra,  111.  Cent.  R.  Co.  v.  McCullough,  59  Dl.,  166;  MetropoHtan  Bank 
V.  Godfrey,  23  lU.,  579;  PeU  v.  McEh'oy,  36  Cal.,  268;  Wright  v.  Bates, 
13  Vt.,  341 ;  Grimstone  v.  Carter,  3  Paige,  421 ;  Hopkins  v.  Ganard,  7  B. 
Mon.,  312;  Webster  v.  Maddox,  6  Me.,  256;  McKeckine  f.  Hoskins,  23 
Me.,  230;  Jacques  v.  Weeks,  7  Watts,  261;  Bm-ton  v.  Shotwell,  6  Cent. 
L.  J.,  31  (Ky.). 


NOTICE   BY   POSSESSION.  167 

nants  of  seizin,  without  mention  of  the  easement,  of  the 
tract  upon  which  the  water  privilege  was  claimed,  it  was 
held  that  the  continued  possession  and  use  of  this  privilege, 
both  before  and  after  his  obtaining  title  to  the  property, 
was  suflBcient  notice  of  the  original  reservation  to  put  his 
grantee  upon  inquiry.'  In  dehvering  the  opinion  in  this 
case,  Mr.  Chief  Justice  Gibson  makes  a  distinction  between 
the  facts  and  those  in  the  prior  case  of  "Woods  v.  Farmere.^ 
There  it  was  decided  in  substance  that  an  owner  of  distinct 
titles,  who  gives  record  notice  of  one  of  them,  abandons,  as 
to  purchasers,  the  other,  of  which  possession  would  other- 
wise be  implied  notice.  "  That,  however,"  says  the  learned 
judge,  "  is  not  this  case ;  for  Isaac  Silverthorn  had  but  one 
title  to  the  water-right,  and  held  out  neither  notice  nor  pre- 
tense of  any  other."  Without  presuming  to  question  the 
justice  of  this  decision  it  is  difficult  to  avoid  the  conclusion 
that  it  is  exceptional  to  the  rule  announced  in  Woods  v. 
Farmere,  for  the  reason  that  the  possession  of  the  water- 
right  was  clearly  consistent  with  the  defendant's  ownership 
of  the  fee  as  it  appeared  by  his  recorded  deed.  But  whether 
under  the  circumstances  of  the  case  his  conve3'ance  to 
plaintiff  was  inconsistent  with  a  continuance  of  such  right 
is  another  matter. 

§  301.  Exception  to  Rule  Requiring  Consistency.— 
Another  exception  allowed  in  favor  of  the  validity  of  no- 
tice of  title  by  possession,  of  one  who  has  executed  and 
delivered  an  instrument  inconsistent  with  the  title  claimed, 
which  was  placed  upon  record,  was  where  the  deed  from 
the  tenant  in  possession  merely  gave  his  grantee  instan- 
taneous seizin,  which  was  utterly  divested  by  the  contempora- 
neous reconveyance  to  his  grantor  and  two  sons.^  Here  it 
was  held  as  against  an  attaching  creditor  of  the  first  grantee, 
that  the  possession  of  the  tenants  was  sufficient  to  put  cred- 
itors on  inquiry,  notwithstanding  the  deed  of  such  grantee 

lEandall  v.  SUverthorn,  4  Pa.  St.,  173. 

•-'7  Watts,  385;  ante,  §298. 

^i  Webster  v.  Maddox,  6  Me.,  256. 


168  NOTICE   BY    POSSESSION. 

was  first  recorded,  and  the  attachment  was  levied,  and  exe- 
cution issued  on  the  judgment  was  duly  extended  and  re- 
corded diu'ing  the  intermediate  time  between  the  recording 
of  the  two  deeds ;  and  there  was  no  visible  change  of  pos- 
session, the  sons  residing  upon  the  premises  as  members  of 
their  lather  s  family,  as  they  had  done  before.  Froih  the 
report  of  this  case  it  appears  that  the  attachment  was  levied 
so  soon  after  the  recording  of  the  deed  to  the  debtor,  that 
it  is  not  probable  that  the  credit  from  which  the  debt 
arose  was  obtained  upon  the  faith  of  the  record  title.  The 
pm'pose  of  the  transaction  stands  plainly  revealed  as  a  cir- 
cuitous conveyance,  by  the  father  to  the  sons,  of  an  interest 
in  the  land,  and  the  first  grantee  was  employed  as  a  mere 
conduit  for  the  title.  The  facts  of  this  case  may  be  suffi- 
cient to  reconcile  one  to  an  exception  to  what  ma}''  itself 
be  regarded  as  an  exception  to  the  doctrine  of  notice  by 
registration;  but  were  the  facts  of  a  case  the  same,  ex- 
cept that  an  innocent  purchaser  occupied  the  position  of 
the  attaching  creditor  in  this  case,  the  transitory  natm^e  of 
the  title  vested  in  the  grantee  whose  deed  was  recorded 
would  be  no  protection  to  tlie  grantor's  possession. 

§  302.  Possession  to  Begin  with  Unrecorded  Title. — 
It  has  also  been  decided,  Avhere  possession  by  one's  les- 
sees or  tenants  was  regarded  as  sufficient,  that  their  ten- 
ancy must  commence  after  the  acquisition  of  the  title  evi- 
denced by  such  possession.  In  other  words,  where,  at  the 
time  of  the  sale,  the  grantor  was  in  possession  by  his  ten- 
ants, who  afterwards  attorned  to  the  grantee,  the  grantor's 
deed  being  um^ecorded,  this  was  held  insufficient  to  charge 
even  an  attaching  creditor  of  the  grantor  with  notice  of 
such  unregistered  conve3^ance.^ 

§  303.  Possession  as  Lessee  Changed  to  Possession  as 
Owner. —  So  where  one  who  held  possession  as  lessee,  and 
after  the  expiration  of  the  term  remained  a  tenant  at  suf- 
ferance for  a  short  time  and  then  purchased  the  fee,  it  was 
decided  that  such  possession  would  be  referred  to  the  origi- 

iLoughridge  v.  Bowland,  53  Miss.,  546. 


NOTICE   BY   POSSESSION.  169 

nal  tenancy  under  which  it  commencedj  and  would  not 
stand  for  notice  of  the  title  under  which  she  held  at  the 
date  of  the  subsequent  purchase.^ 

§301.  The  Rule  in  Mississippi. —  These  cases  seem  to 
settle  the  law  upon  this  question  for  the  state  of  Mississippi, 
upon  a  theory  peculiar  to  that  jurisdiction.  Drawing  the 
inference  of  notice  of  title  from  the  fact  of  possession  by 
the  claimant  is  there  reg'arded  as  resting;  with  the  neiffh- 
borhood,  or  with  the  subsequent  party  to  the  title,  instead 
of  with  the  court  or  jury.  Elsewhere,  possession  derives 
its  force  as  a  circumstance  tending  to  fix  notice  of  a  prior 
equity  or  um^egistered  conveyance  upon  subsequent  parties, 
from  the  fact  that  it  is  sufficient  to  put  them  upon  inquiry, 
and  for  a  failure  to  inquire  mala  fides  is  imputed  to  them. 
Here  it  seems  requisite,  not  only  that  the  subsequent  party 
must  have  notice  of  the  possession,  but  his  mind  must  be 
free  from  doubt  as  to  the  character  of  such  possession  before 
he  inquires.  Other  courts  decide  that  the  notice  inferred 
from  possession  shall  be  of  such  title  as  the  possessor  had 
at  the  time  of  the  subsequent  purchase,  limiting  the  appli- 
cation of  the  principle  to  cases  where  the  tenant  in  posses- 
sion has  not  estopped  himself  from  relying  upon  his 
possession  as  notice,  by  placing  upon  record  a  title  incon- 
sistent with  that  claimed,  or  a  different  title  which  is  per- 
fectly consistent  with  his  possession.  In  the  latter  event, 
his  possession  will  be  referred  to  his  record  title.  These 
cases,  however,  decide  that  possession  by  a  purchaser  after 
his  term  expires  will  be  referred  to  his  original  lease  which 
is  not  a  matter  of  record.  There  seems  to  be  a  difference 
of  principle  upon  which  these  cases  are  decided  from  that 

1  Claiborne  v.  Holmes,  51  Miss.,  146;  Kerr  v.  Day,  14  Pa.  St.,  112; 
Cunningham -y.  Pattee,  99. Mass.,  248.  But  see  Daniels  v.  Davison,  16 
Ves.,  249;  Crofton  v.  Ormsby,  2  Sch.  &  Lef.,  583;  Wilbraham  v.  Live- 
sey,  18  Beav.,  206;  Powell  v.  Dillon,  2  B.  &  B.,  416;  Hervey  v.  Smith, 
22  Beav.,  499;  Moreland  v.  Richardson,  id.,  596.  See,  also.  Miles  v. 
Langley,  1  R.  &  M.,  39;  Wliite  v.  Wakefield,  7  Sim.,  401;  Nelthorpe  v. 
Holgate,  1  CoU.,  203;  Oxwith  v.  Plummer,  2  Vern.,  636. 


170  NOTICE   BY   POSSESSION. 

governing  those  elsewhere  determined,  which  we  will  not 
attempt  to  reconcile.^ 

§  305.  Creditors  Affected  with  Notice. —  From  authori- 
ties abeady  cited,  as  well  as  upon  general  princii)les,  it  is 
quite  clear  that  subsequent  purchasers  and  incumbrancers 
are  not  the  only  parties  who  may  be  affected  by  this  species 
of  implied  notice,  but  that  it  may  be  invoked  against  cred- 
itors of  the  grantor.- 

§  306.  Possession  of  Chattels. —  The  doctrine  that  the 
purchaser  of  chattels  from  one  who  has  no  possession  thereof 
at  the  time  of  his  purchase  takes  the  same  with  full  notice 
of  all  the  rights  of  the  one  who  has  them  in  possession,  is 
so  well  established  as  not  to  require  the  citation  of  author- 
ities in  its  support.  Possession  is  much  more  universally 
recognized  as  evidence  of  ownership  in  case  of  chattels 
than  where  the  title  to  real  property  is  involved.  The  in- 
ference follows  naturally  from  the  nature  of  the  property 
and  the  manner  of  transferring  the  title  thereto.  Not  only 
is  possession  notice  of  the  interest  of  the  possessor,  but 
from  the  fact  that  the  title  to  movable  things  is  usually 
transmitted  by  manual  delivery  of  the  property,  such  pos- 
session is i)rima  facie  evidence  of  absolute  ownership.' 

1  It  is  decided  in  a  recent  case  that  a  son  who  occujjied  certain  prem- 
ises, the  title  to  wliich  was  in  his  fatlier,  in  subordination  to  his  father's 
title,  and  who  continued  such  possession  after  his  father's  death,  would 
not  be  permitted  to  rest  upon  such  possession,  either  before  or  after  his 
father's  death,  as  notice  to  a  subsequent  purchaser  from  other  heirs,  of 
a  i^arol  contract  from  his  father  to  convey  the  i^roperty  to  him.  Stone 
V.  Cook,  79111.,  424. 

2 Kent  V.  Plumer,  7  Me.,  464;  Webster  v.  Maddox,  G  Me.,  256;  NewhaU 
V.  Pierce,  5  Pick.,  450;  Massey  v.  Mcllwain,  2  Hill's  Ch.,  421;  Macon  v. 
Sheppard,  2  Humph.,  335;  Hackwith  v.  Damron,  1  Mon.,  235. 

3  But  see  Chicago  T.  P.  P.  Co.  v.  Lowell,  60  Cal.,  454. 


CHAPTEE  Y. 

NOTICE  FROM  TITLE  PAPEES. 

§  307.  General  Statement  of  the  Doctrine. 

308.  Equivalent  to  Actual  Notice. 

309.  Treated  as  Constructive  Notice. 

310.  Modifications  of  the  Rule. 

311.  Recitals  in  Original  Patent. 
313.  Illustration. 

313.  Sufficient  if  Recitals  Would  Lead  to  Ejiowledge, 

314.  In  Same  Transaction. 

315.  Should  be  in  Same  Chain  of  Title. 

316.  Recitals  Reasonably  Certain. 

317.  Same. 

318.  Example  of  General  Recital. 

319.  Uncertainty  of  Description. 

320.  Striking  Peculiarities  of  Recital. 

321.  Recital  in  Will  —  In  Lease. 

322.  Limitations  Upon  Effect  of  Recitals. 

323.  Recital  of  a  Trust.       • 

324.  May  be  by  Variety  of  Instruments. 

325.  Recital  in  Mortgages. 
320.  Books  of  Record. 

327.  Conveyance  by  Statute. 

328.  Facts  Which  May  be  thus  Brought  Home  to  Purchaser. 

329.  Contract  to  Convey. 

330.  Vendor's  Lien. 

331.  Wlio  Affected. 

332.  Different  Kinds  of.  Property. 

333.  Stocks  Transferred  by  Executor. 

334.  Personal  Property. 

335.  Inquiry  Extends  to  Examination  of  Papers. 

336.  Deed  of  Real  Estate  Containing  Bill  of  Chattels. 

§  307.  General  Statement  of  the  Doctrine. —  The  notice 
to  purchasers  of  interests  in  tlie  subject  of  the  purchase, 
which  is  derived  from  the  papers  by  Avhich  the  title  is  trans- 
mitted, affected  or  incumbered,  is  for  obvious  reasons  con- 
fined almost  exclusively  to  real  estate.     It  is  only  in  those 


172  NOTICE   FROM   TITLE   PAPERS. 

exceptional  instances  where  pei-sonal  propert}'  passes  by 
written  conveyances,  or  the  title  depends  upon  some  instru- 
ment of  writing,  that  it  will  be  subject  to  the  same  rule. 
But  it  is  not  restricted  to  any  particular  class  of  papers.  It 
embraces  all  written  evidences  of  title  known  to  the  law, 
and,  of  all  kinds  of  notice  that  may  depend  upon  inference 
or  presumption,  is  perhaps  the  most  generallv  recognized.' 
§308.  Equivalent  to  Actual  Notice. —  As  a  matter  of 
fact,  a  purchaser  of  real  estate  may  be  totally  ignoraiit  of 
the  recitals  in  his  own  deed ;  yet  every  recital  of  a  fact 
affecting  the  title  to  the  premises,  contained  in  such  deed, 
will  be  presumed  to  be  known  to  such  purchaser,  and  he 
will  be  affected  with  notice  thereof  in  the  same  manner  and 
to  the  same  extent  as  though  he  had  actual  knowledge, 
though  the  statute  interposes  the  provision  that  those  only 
shall  be  charged  who  have  actual  notice.-     Therefore  it 

1  Fryer.  Partridge,  82  HI.,  267;  Chicago,  etc.,  R.  Co.  v.  Kennedy,  70 
ni.,  350;  Rupert  v.  Mark,  15  HI.,  540;  Merrick  v.  Wallace,  19  lU.,  486; 
Morris  r.  Hogle,  37  111.,  150;  Morrison  v.  Kelley,  22  111.,  610;  Doyle  v. 
Teas,  5  HI.,  202:  McConneU  r.  Reed,  5  lU.,  117;  Wiseman  v.  Hutcliinson, 
20  Ind.,  40;  Croskey  r.  Chapman,  26  Ind.,  333;  Corbitt  v.  Clenny,  52  Ala., 
480 ;  Burch  v.  Carter,  44  Ala.,  115 ;  Witter  v.  Dudley,  42  Ala.,  616 ;  Dudley 
V.  Witter,  46  Ala.,  664;  Campbell  v.  Roach,  45  Ala.,  667;  Newsome  r. 
Collins,  43  Ala.,  656;  Deason  v.  Taylor,  53  Miss.,  697;  AHen  v.  Poole,  54 
Miss.,  328;  Wailes  v.  Cooper,  24  Miss.,  208;  Johnson  v.  Gwathmey,  4 
Litt.,  317;  Mueller  v.  Engeln,  12  Bush,  441;  Major  v.  Buckley,  51  Mo., 
227;  Ridgeway  r.  HoUiday,  59  Mo..  444;  Long  v.  WeUer,  29  Gratt.,  347: 
Wood  V.  Krebbs,  30  Gratt.,  708:  Bm-w ell's  Ex'rs  v.  Fauber,  21  Gratt.,  446; 
Stidham  v.  Mathews,  29  Ark.,  650;  Fitzhugh  r.  Barnard,  12  :Mich.,  105; 
Case  V.  Erwin,  18  Mich..  434;  Priagle  v.  Dunn,  37  Wis.,  449;  Howard  Ins. 
Co.  r.  Halsey,  8  N.  Y.,  271;  Frost  iv  Beekman,  1  Johns.  Ch.,  288;Gibert 
V.  Peteler,  38  N.  Y.,  165;  Green  v.  Early,  39  Md.,  223;  Mun-eU  r.  Watsc^n. 
1  Tenn.  Ch.,  342;  Malpas  v.  Ackland,  3  Russ.  (Eng.),  273;  Rafferty  r. 
MaUory,  3  Biss.,  362;  Kerr  v.  Kitchen,  17  Pa.  St.,  433;  Greenfield  v. 
Edwards,  2  De  G.,  J.  &  S.,  582;  Da  vies  v.  Tliomas,  2  Young  &  C.  Exch., 
234;  Pilcher  v.  RawUns,  L.  R.,  11  Eq.,  53;  7  Ch.,  259;  Clements  v.  WeUs, 
L.  R.,  1  Eq.,  200:  Robson  v.  FUght,  4  De  G.,  J.  «&  S.,  608;  Bacon  r. 
Bacon,  Tothill,  133;  Bisco  v.  Earl  of  Banbury,  1  Ch.  Cos.,  287;  Coppin 
r.  Fernyhough,  2  Brown,  Ch.,  291. 

2 White  V.  Foster,  102  Mass.,  375;  George  v.  Kent,  7  AUen,  16;  Worm- 
ley  V.  Wormley,  8  Wheat.,  421;  Oliver  v.  Piatt,  8  How.,  333;  Christmas 


KOTICE    FKOM   TITLE    PAPEES.  ilO 

may  be  said  that  notice  derived  from  the  recitals  in  the 
deed  to  a  pm*chaser  is  actual,  though  it  clearly  rests  upon  a 
presumption  of  law.  It  may  be  called  actual,  however,  in 
the  same  sense  that  a  written  notice  dehvered  to  a  party 
who  never  reads  it  may  be  called  actual  notice.^ 

§309.  Treated  as  Constructive  Notice.^- The  recitals 
of  one's  unmediate  deed  beino;  reg-arded  as  actual  notice,  it 
woidd  seem  to  follow  that  where  such  recitals  referred  to 
other  instruments,  they  would  be  suiRcient  to  put  the  pur- 
chaser upon  inquiiy  with  respect  to  the  instruments  referred 
to,  and  thus  make  their  recitals  notice  which  might  properly 
be  classed  as  actual.  In  most  of  the  cases,  however,  when 
it  is  sought  to  charge  a  purchaser  with  notice  bv  the  re- 
citals contained  in  instruments  affecting  the  title  other  than 
his  own  immediate  deed,  it  is  characterized  in  the  books  as 
constructive  notice.  It  would  be  more  accm'ately  designated 
as  presumptive  notice? 

§  3 1 0.  Modifications  of  the  Rule. —  The  doctrine  embod- 
ied in  the  general  statement  that  a  pm'chaser  of  realty  takes 
with  notice  of  every  adverse  legal  claim  or  outstanding 
equity  disclosed  by  the  recitals  contained  in  any  of  the 
papers  under  or  thi'ough  which  he  traces  his  title,  is  of  uni- 
versal recognition,  both  in  this  country  and  Great  Britain, 
subject,  however,  to  such  refinements  and  modifications  as 
the  peculiarities  of  adjudicated  cases  have  from  time  to  time 
demanded.' 

V.  Jilitchell,  3  Ired.  Eq.,  535;  Mason  v.  Paine,  Walk.  Ch.,  453;  Chew  v. 
Calvert,  Walk.,  54;  Tanner  v.  Florence,  1  Ch.  Cas.,  259;  Newsom  v. 
Clarkson,  2  Hare,  163. 

'  Guion  V.  Knapp,  6  Paige,  35;  Ken-  v.  Kitchen,  17  Pa.  St.,  433;  Hack- 
with  V.  Damron,  1  Mon.,  235;  Bellas  v.  Lloyd,  3  Watts,  401. 

2  Ante,  ch.  I,  pt.  I. 

•^Hackwith  r.  Damron,  1  Mom-.,  235;  Neale  r.  Hagtlu-op,  3  Bland,  551; 
Hagthrop  v.  Hook,  1  Gill  &  J.,  270;  Baker  v.  Mather,  25  Mich.,  51;  Stid- 
ham  V.  Matthews,  29  Ark.,  650;  Corbitt  v.  Clenny,  52  Ala.,  480;  Baze- 
more  v.  Davis,  55  Ga.,  504;  Jumel  v.  Jumel,  7  Paige,  591:  Briggs  v. 
Palmer,  20  Barb.,  392;  Hamilton  r.  Xutt,  34  Conn.,  501;  Dargin  v. 
Beeker,  10  Iowa,  571;  Babcock  v.  Lisk,  57  111.,  327;  Pike  v.  Goodnow,  13 


1Y4  KOTICE   FROM   TITLE   PAPERS. 

§  311.  Recitals  in  Original  Patent. —  So  where  the  title 
is  derived  from  the  general  government  by  a  patent,  which 
contains  recitals  affecting  the  title  in  the  hands  of  a  pur- 
chaser, however  remote  from  the  original  patentee,  such 
I'ccitals  will  affect  the  purchaser,  although  he  was  ignorant 
both  of  the  recitals  and  the  facts  recited  when  he  acquired 
the  title.' 

§312.  Illustration. —  An  example  of  tliis  rule  and  its 
application  to  recitals  in  the  original  patent  was  where  the 
party  entitled  to  a  patent  devised  the  property  to  his  son 
in  tail,  and  in  the  event  of  his  decease  without  issue,  to  de- 
scend to  another  son.  After  the  decease  of  the  devisor  the 
devisee  obtained  a  patent  to  the  land,  by  which  it  was  granted 
to  him  m  fee-simple^  reciting  that  the  title  was  derived  under 
the  will  of  the  devisor.  The  land  was  conveyed  by  the 
patentee  in  several  parcels  to  dijfferent  grantees  in  fee,  and  in 
the  deeds  of  bargain  and  sale  he  recited  the  patent  under 
which  he  held.  After  the  land  had  passed  by  successive 
conveyances  to  a  grantee  for  value,  in  a  contest  between  the 
issue  in  tail  and  such  subsequent  pm"chaser,  it  was  held, 
though  admittedly  a  hard  case,  that  the  purchasers  were 
affected  by  the  recitals  in  the  patent  of  the  extent  of  the 
estate  devised  in  the  will.^ 

§313.  Sufficient  if  Recitals  Would  Lead  to  Knowl- 
edge.—  It  is  not  necessary,  in  order  to  constitute  notice  by 
this  means,  that  the  recitals  in  the  antecedent  deed  or  other 
instrument  through  which  the  title  is  traced  shall  contain  a 
detailed  and  expUcit  reservation  of  the  right  or  title  claimed, 
in  such  terms  as  would  dispense  with  further  proof.  It  will  be 
sufficient  if  the  party  cannot  make  out  his  title  without  such 

Conn.,  472;  Sanborn  v.  Robinson,  54  N.  H.,  239;  Brown  v.  Simons,  44 
N.  H.,  475,  See  Hobnes  v.  Ferguson,  1  Or.,  220;  Graham  v.  Meeks,  1 
Or.,  325. 

1  Bonner  v.  Ware,  10  Ohio,  465;  Brush  v.  Ware,  15  Pet.,  93;  S.  C,  1 
M'Lean,  533 ;  Reeder  v.  Barr,  4  Ohio,  446. 

-Burkart  v.  Bucher,  2  Bin.,  455;  also  Oliver  v.  Piatt,  3  How.  (U.  S.), 
333,  409. 


NOTICE    FROM   TITLE    PAPERS.  1T5 

instrument,  which  by  its  recitals  leads  him  to  the  fact  of 
which  he  is  to  be  charged  with  notice.  The  reason  alleged 
for  the  rule  is  that  the  purchaser  is  entitled  to  see  all  the 
muniments  of  title,  and  therefore  must  be  presumed  to  have 
seen  them,  and  to  have  taken  notice  of  all  their  recitals 
which  in  any  way  affect  his  purchase,  as  the  omission  on 
his  part  to  take  such  precautions  would  amount  to  gross 
neoii<rence.^ 

§  314r.  In  Same  Transaction. —  It  is  decided,  however, 
in  most  of  the  early  English  cases  above  cited,  that  notice 
to  a  purchaser  b}^  his  title  papers  in  one  transaction  Avill  not 
be  notice  to  him  in  an  independent  subsequent  transaction, 
in  which  the  instruments  containing  the  recitals  are  not 
necessary  to  his  title ;  but  that  he  is  charged  constructively 
with  notice,  merely  of  that  which  affects  the  purchase  of 
the  property  in  the  chain  of  title  of  which  the  paper  forms 
a  necessary  link.  So  that,  where  one  is  purchasing  a  par- 
ticular piece  of  real  estate,  and  his  title  deeds  recite  a  charge 
upon,  or  equitable  interest  in,  another  piece  in  favor  of  a 
third  party,  such  recitals  would  not  affect  him  with  notice 
of  such  charge  or  interest,  in  the  event  of  his  subsequent 
purchase  from  the  holder  of  the  legal  title  to  the  other 
property.  He  is  not  presumed  to  carry  the  knowledge  thus 
imputed  to  him  in  the  first  transaction  in  his  memory  until 
the  second  purchase  has  been  effected.^ 

§  315.  Should  be  in  Same  Cliain  of  Title. —  This  appli- 
cation of  the  doctrine  has  also  received  the  approbation  of 

1  Jolinson  V.  Tliweatt,  18  Ala.,  741;  Neale  v.  Hagthrop,  3  Bland,  551 
Gordon  v.  Sizer,  39  Miss. ,  805 ;  Van  Doren  v.  Robinson,  1  Green,  256 
Rogers  i;.  Jones,  8  N.  H.,  264;  GaiTett  v.  Puckett,  15  Ind.,  485;  Ross  v. 
Wortliington,  11  Minn.,  438;  Griffith  v.  Griffith,  1  Hoff.  Ch.,  153;  Ham- 
ilton V.  Royse,  2  Sch.  &  Lef.,  315;  Mertms  v.  Johffe,  Amb.,  311 ;  Taylor 
V.  Stibbert,  2  Ves.  Jr.,  437;  Surman  u.  Barlow,  2  Edm.,  167;  Taylor  v. 
Baker,  5  Pri.,  306;  Moor  v.  Bennett,  2  Ch.  Cas.,  246;  Palmer  v.  AVheeler, 
3  B.  &  B.,  31 ;  Roddy  v.  Williams,  3  J.  &  L.,  1 ;  Steadman  v.  Poole,  16 
L.  J.  Ch.,  349;  Hope  v.  LiddeU,  21  Beav.,  183;  Howard  v.  Chase,  104 
Mass.,  249. 

2  See  Hamilton  v.  Royse,  2  Sch.  &  Lef.,  315,  and  cases  cited. 


176  NOTICE   FROM   TITLE   PAPERS. 

tlie  American  courts,  -when  invoked  to  charge  a  purchaser 
witli  notice  of  an  antecedent  unrecorded  instrument,  or 
equitable  interest,  in  cases  where  the  recitals  offered  in  evi- 
dence of  notice  were  contained  in  the  title  papers  to  a  dif- 
ferent piece  of  property  from  that  to  whicli  they  referred.' 
In  the  case  cited,  Judge  Rooeus,  in  delivering  the  opinion 
of  the  court,  says  in  explanation  of  the  reason  for  the  hold- 
ing: "The  evidence  would  lead  to  dangerous  consequences, 
for  it  is  impossible  for  any  one  to  recollect  the  recitals  in 
deeds  under  which  he  may  claim.  Let  this  be  held  to  be 
admissible  and  competent  to  affect  a  subsequent  purchaser 
with  notice,  it  would  follow  that  no  man  can  safely  pur- 
chase until  a  most  careful  examination  and  ins]3ection  of 
every  deed  to  which  he  may  be  a  party,  and  under  which 
he  claims."^ 

§316.  Recitals  Reasonably  Certaiu. —  As  to  the  man- 
ner in  which  the  fact,  of  which  the  purchaser  is  presumed 
to  take  notice,  should  be  referred  to  in  the  instrument,  noth- 
ing more  can  be  said  in  a  general  way  than  that  it  should 
be  reasonably  certain  and  specific,  the  recitals  containing 
sufficient  information  to  put  a  man  of  reasonable  prudence 
upon  inquiry,  leading  to  the  truth.  Mere  vague  allusions 
■^.o  something  which  may  or  may  not  amount  to  an  interest 
in  the  property  will  not  always  suffice." 

§  317.  Same. —  The  rule  as  to  certainty,  however,  as  de- 
duced from  the  authorities,  can  probably  be  exempUfied 

1  Boggs  V.  Varner,  6  Watts  &  Serg.,  469. 

2 Id.,  473. 

SRidgewayr.  HoUiday,  59  Mo.,  444;  Boggs  v.  Vai-ner,  6  Watts  &  Serg., 
469;  Kaine  v.  Denniston,  22  Pa.  St.,  203;  French  v.  Loyal  Co.,  5  Leigh, 
627 ;  Smith  v.  Denton,  42  Iowa,  48 ;  Watson  v.  Phelps,  40  Iowa,  482 ; 
Munnu.  Best,  63  Mo.,  491;  Kearney  v.  Vaughan,  50  Mo.,  284;  May  v. 
Le  Claire,  11  Wall.,  217;  Bragg  v.  Paulk,  42  Me.,  503;  Bertram  v.  Cook, 
32  Mich.,  518;  Edmonds  v.  Torrence,  48  Ala.,  38;  Stout  v.  Hyatt,  13 
Kans.,  232;  Lewis  v.  Boskins,  27  iVi-k.,  61;  Peay  v.  Capps,  27  Ark.,  160; 
Conover  r.  Van  Mater,  18  N.  J.  Eq.,  481;  McNary  v.  Southworth,  58 
m.,  473;  White  V.  Carpenter,  2  Paige,  217;  Bell  v.  Twilight,  22  N.  H., 
500.  But  see  Chapman  v.  Sims,  53  Miss.,  154;  Corbin  v.  Sullivan,  47 
Ind.,  856;  Hutcliinson  v.  Harttman,  15  Kans.,  133. 


NOTICE    FROM   TITLE    PAPEKS.  lii 

more  satisfactorily  by  illustration  from  cases  where  the 
uttermost  limit  of  uncertainty  has  been  reached. 

§  318.  Example  of  General  Recital. —  In  Bellas  v. 
Lloyd/  the  purchase  made  was  by  defendant  from  the 
plaintiff  and  wife,  of  a  lot  upon  which  was  situated  a 
chm-ch  edifice.  The  deed  of  conveyance  purported  to  con- 
vey to  defendant  the  property  in  question,  "  together  with 
all  the  rights,  lil^erties,  privileges,  hereditaments  and  ap- 
purtenances, in  as  full  and  ample  a  manner,  and  with  all 
the  same  rights  and  conditions,  authorities  and  agreements, 
with  which  the  said  H.  B.  (the  plaintiff),  and  E.,  his  wife, 
now  hold  the  said  premises,  as  regards  all  or  any  assemblies 
for  divine  worship."  This  was  held  sufficient  to  charge  the 
purchaser  with  notice  of  every  subsisting  agreement  by 
plaintiff  with  any  religious  body,  for  the  use  of  the  church 
for  divine  worship. 

§  319.  Uncertainty  of  Description. —  So  where  the  tes- 
tator, in  the  will  under  which  the  purchaser  claimed,  devised 
to  his  son  fifty  acres  out  of  the  northwest  corner  of  the 
tract  claimed  by  the  purchaser,  unless  it  had  been  selected 
elsewhere,  and  never  given  up,  this  was  held  sufficient  to 
charge  the  purchaser  with  notice  of  the  claim  of  the  son 
to  fifty  acres,  because  any  person,  on  reading  the  will,  would 
be  led  to  inquire  whether  the  devisee  had  received  his  fifty 
acres,  and,  if  so,  whether  he  had  selected  it  elsewhere  than 
in  the  corner  designated.  The  information  contained  in 
the  will  was  sufficient  to  put  the  purchaser  upon  inquiry, 
because  the  will  was  a  necessary  link  in  his  grantor's  title,- 
It  will  be  noticed  here  that  there  were  several  features  of 
uncertainty  involved  in  this  devise.  It  was  only  to  take 
effect  upon  the  particular  portion  of  the  tract  described,  in 
the  event  that  it  had  not  been  permanently  selected  else- 
where. There  was  no  time  specified  for  the  selection,  nor 
any  particular  fifty  acres  designated,  and  yet  as  this  might 
have  been  rendered  sufficiently  certain  to  protect  a  pur- 

1 2  Watts,  401. 

2McAteer  v.  McMullen,  S  Pa.  St.,  82. 
13 


178  NOTICE    FROM    TITLE   TAPEKS. 

chaser  who  wouhl  take  the  pains  to  inquire,  the  court-held  it 
suificient  to  impose  the  duty  of  inquiry  upon  purchasers 
under  the  will,  however  remote. 

§320.  Srikiiig  Peculiarities  of  Recital. —  It  has  also 
been  decided,  where  there  was  a  deed  of  release  from  one 
of  two  partnei"S  in  business  to  himself  and  copartner,  in 
w^hich  the  consideration  was  expressed  as  follows:  "One 
dollar,  received  of  C.  S.  &  C.  M.,  merchants  in  trade  under 
the  firm  name  of  C.  &  Co.,"  the  land  "  to  be  held  in  such 
proportion  as  is  agreed  on  between  them,"  that  the  striking 
singularities  of  this  instrument  —  it  being  a  deed  from  the 
releasor  to  himself  and  another,  and  describing  the  re- 
leasees as  partners,  etc. —  were  sufficient  to  put  the  purchaser 
upon  inquiry  as  to  whether  or  not  it  was  partnership  prop- 
erty.' 

§321.  Recital  in  Will — In  a  Lease. —  So  where  the 
codicil  of  a  will,  through^  which  the  title  was  traced,  recited 
the  fact  that  the  plantation  and  tract  of  laud  near  to  the 
])remises  of  a  j\Ir.  H.  Avas  the  joint  property  of  the  testator 
and  another,  the  notice  was  held  sufficiently  certain,  though 
it  did  not  state  whether  the  land  joined  that  of  H.  on  the 
north,  south,  east  or  west  side.'  There  were  pecuhar  cir- 
cumstances, however,  tending  to  render  this  description 
more  certain  than  it  appeared  on  its  face ;  for  there  was 
but  one  piece  of  property  owned  by  the  testator  at  the 
time  of  his  decease,  in  that  townsliip,  or  which  answered  to' 
the  description  in  the  codicil  in  any  other  particular.  It  is 
also  held  that,  where  the  title  papers  recite  the  fact  of  the 
existence  of  a  lease,  it  takes  eifcct  as  notice  of  the  cove- 
nants therein  contained.*  But  the  effect  of  notice  of  a  lease 
has  been  confined  to  the  ordinary  covenants  therein.* 

iSigonmey  v.  jMunn,  7  Conn.,  324. 

-  Lodge  V.  Simonton,  2  Penn.,  439. 

8  Smith  V.  Capron,  7  Hare,  185;  Tanner  v.  Florence,  1  Ch.  Cas.,  259; 
Drysdale  v.  Mace,  2  Sm.  &  Gif.,  225;  Cesser  v.  Collinge,  3  My.  &  K., 
282;  Cox  v.  Coventon,  31  Beav.,  378;  Martin  v.  Cotter,  3  Jones  &  L., 
496;  Pope  r.  Garland,  4  Y.  &  C,  394. 

^ Flight  V.  Barton,  3  My.  &  K.,  283;  Van  v.  Corpe,  2  My.  &  K.,  269; 
Pope  V.  Garland,  4  Y.  &  C,  394. 


NOTICE   FKOM   TITLE   PAPEKS.  179 

§  322.  Limitations  Upon  EiFect  of  Recitals.— On  the 

other  hand,  the  effect  of  the  recital  as  notice  will  be  con- 
fined to  the  fact  recited,  and  such  other  facts  as  it  directly 
leads  to.  Thns,  where  a  second  mortgage  referred  to  a 
prior  one  in  which  it  was  recited  that  "  part  of  the  premises 
above  described  are  snbject  to  a  lease  and  mortgage  to  D. 
F.  &  Co.,  and  a  mortgage  to  S.  F.,  B.  F.  and  H.  F.,  as  by  ref- 
erence to  the  records  will  more  fully  appear,"  it  was  held 
that  this  would  only  amount  to  notice  of  the  conveyances 
described,  and  if  there  were  none  such,  would  not  be  notice 
of  an  unregistered  conveyance  to  D.  F.  and  wife.' 

§  323.  Recital  of  a  Trust. —  It  was  likewise  held,  in  a 
case  Avhere  there  was  a  recital  in  a  deed  made  for  a  consid- 
eration merely  nominal,  that  it  was  made  in  fulfillment  of 
a  trust  reposed  in  the  grantor  by  the  grantee,  did  not  amount 
to  notice  of  any  other  trust  than  one  in  favor  of  the  grantee.- 

§  324.  May  be  by  Yariety  of  Instruments. —  ]^otice 
may  be  brought  home  to  a  subsequent  purchaser  b}^  the  re- 
citals in  a  great  variety  of  instruments.  As  we  have  seen, 
it  may  be  by  the  contents  of  a  will,  where  the  title  to  the 
property  has  been  passed  to  the  grantor  by  de^^se.''  So 
where  a  testator  devised  a  farm  to  his  son,  and  gave  to  his 
two  daughters  a  legacy  of  $1,000  each,  to  be  paid  by  the 
son,  whom  he  made  residuary  legatee,  the  farm  was 
held  in  equity  to  be  charged  with  the  payment  of  the  lega- 
cies, unless  there  was  something  in  the  will  to  rebut  the 
presumption  that  the  testator  intended  so  to  charge  the  es- 
tate devised.  And  a  subsequent  purchaser  from  the  de^^see 
or  his  grantee,  being  compelled  to  trace  his  title  through  the 
wiU,  was  held  a£Pected  with  notice  of  the  legacies  and  to 


'Bell  V.  Twilight,  23  N.  H.,  500,  521;  Burch  v.  Carter,  44  Ala.,  115: 
Mueller  v.  Engeln,  12  Bush.,  441;  Boggs  v.  Vamer,  6  "Watts  &  S.,  469; 
Sleeper  v.  Chapman,  121  Mass.,  404.  See,  also,  ChampUn  v.  Laytin,  6 
Paige,  189. 

2Kaine  v.  Denniston,  23  Pa.  St.,  202;  Rafferty  v.  Mallory,  3  Biss., 
363;  Coy  V.  Coy,  15  Minn.,  119. 

SMcAteer  v.  McMullen,  2  Pa.  St.,  32 ;  Lodge  v.  Simonton,  2  Penn.,  439. 


180  NOTICE   FKOM   TITLE   PAPERS. 

take  the  real  estate  subject  to  the  charge.'  And  Avhere  an 
instrument  in  the  chain  of  title  makes  mention  of  a  collat- 
eral instrument,  the  purchaser  would  be  affected  with  notice 
of  the  recital  in  such  collateral  instrument,  and  all  facts  that 
might  be  ascertained  by  due  inquiry  in  the  line  indicated 
by  such  recital.-  This  extends  the  effect  of  notice  from 
title  papers  to  facts  somewhat  remote.  The  fact  recited  in 
the  chain  of  title  is  merely  the  existence  of  an  instrument 
which  is  not  essential  to  the  passing  of  title  from  the  prior 
party  to  the  immediate  grantor  of  the  purchaser.  Such  an 
instrument  may  or  may  not  affect  the  title  by  showing  an  out- 
standing claim.  If  it  contains  any  such  disclosure,  or  facts 
which  would  upon  inquiry  lead  to  such  disclosure,  the  pur- 
chaser is  charged  with  notice.^ 

§  325.  Recitals  in  Mortgages. —  It  is  well  settled  that 
the  ride  applies  to  recitals  in  mortgages  of  prior  date  to  the 
purchase,  subject  only  to  the  provision  that  such  incum- 
brances occur  in  the  chain  of  title  from  the  original  holder 
down  to  the  pm'chaser  affected  by  the  recital.  So  that, 
where  the  title  to  a  piece  of  land  Avas  acquired  at  a  foreclos- 
ure sale  of  a  mortgage,  made  to  secure  two  notes  of  the 
same  date,  neither  of  which  had  priority  over  the  other, 
but  which  were  due  to  different  payees,  and  the  suit  for 
foreclosure  was  brought  by  one  of  such  payees,  without 
making  the  other  a  party,  the  recitals  in  the  mortgage  were 
held  sufficient  notice  to  the  purchaser  of  the  lien  in  favor  of 
the  holder  of  the  other  note.* 

§  32G.  Books  of  Record. —  So,  books  and  records  neces- 
sary to  make  out  the  grantor's  title  have  been  held  to  affect 
with  notice,  by  their  contents,  a  grantee  who  may  be  igno- 
rant of  the  facts  therein  recited.  Thus,  where  the  jDurchase 
was  made  at  a  sale  under  an  execution  against  the  original 
enterer  of  the  land,  it  was  held,  as  he  could  only  make  out 

1  Harris  v.  Fly,  7  Paige,  421. 

2  Judsonr.  Dada,  79  N.  Y.,  373. 

3  Hope  V.  Liddel,  21  Beav.,  183. 

*  Bun-US  V.  Boulliac,  2  Bush,  89. 


NOTICE   FKOM   TITLE   PAPEKS.  181 

his  title  by  reference  to  the  books  in  the  land  oflBce  which 
show  the  original  entry,  that  he  was  affected  with  notice  of 
an  assignment  entered  there  prior  to  the  rendition  of  the 
judgment  upon  which  the  execution  was  based.' 

§  327.  Conveyance  toy  Statute. —  The  manner  of  trans- 
ferring the  title  of  a  judgment  debtor,  by  execution  sale, 
and  the  deed  made  in  pursuance  thereof,  has  been  aptly  de- 
nominated a  "conveyance  by  statute."^  Its  constituent 
parts  are  said  to  consist  of  the  judgment,  the  levy,  and  the 
sheriff's  deed,  each  of  which  is  an  essential  requisite  to  a 
perfect  conveyance.  Upon  the  validity  of  each  of  these 
constituents  must  the  pm-chaser  depend  to  effectuate  a 
transfer  of  the  interest  of  the  judgment  debtor,  and  the 
absence  of  either  would  render  the  conveyance  inoperative 
for  the  purpose  of  vesting  such  interest  in  the  pm'chaser. 
The  record  of  these  facts  is  regarded  as  the  written  evi- 
dence of  title,  answering  in  the  place  of  a  voluntary  deed 
of  convej^ance,  and  as  such  necessary  to  enable  the  subse- 
quent purchaser  to  make  out  his  title.*  The  record  of  the 
judgment  and  decree  forming  part  of  the  conveyance  under 
which  the  property  was  claimed  in  this  case,  when  looked 
into,  disclosed  that  the  plaintiff  was  not  a  party  to  the  suit 
at  which  the  former  judgment  was  rendered ;  that  he  was 
at  that  time  an  infant  of  tender  years ;  that  he  was  the  son 
and  heir  of  A.  jST.,  deceased;  that  one  H.  caused  himself  to 
be  appointed,  in  Tennessee,  administrator  of  the  estate  of 
A.  "N.,  who  up  to  the  time  of  his  death  resided  in  Georgia ; 
that  H.,  in  his  capacity  of  such  administrator,  and  also  in 
the  character  of  a  creditor  under  color  of  such  authority  as 
Avas  conferred  by  statute,  instituted  his  suit  to  subject  tlie 
real  estate  of  the  heir  in  Tennessee  to  the  payment  of  the 
debts  of  his  ancestor,  prosecuted  his  suit  to  judgment,  and 
obtained  a  decree  ordering  a  sale  of  the  real  estate.  At  the 
sale  the  administrator  became  the  purchaser  of  a  tract  of 

f  Martin  v.  Nash,  31  Miss.,  324. 

2  Nelson  v.  Allen,  1  Yerg.  (Tenn.),  360. 


182  NOTICE    FROM    TITLE    PAPEKS. 

six  hundred  and  forty  acres  of  land  for  tlie  price  and  sum 
of  $25.  For  the  reason  that  the  record  of  the  judgment, 
where  these  facts  were  either  disclosed  by  recitals  or  direct 
reference  to  other  papers,  was  a  necessary  link  in  the  chain 
of  title  to  the  property,  it  was  held  that  a  purchaser  would 
be  affected  with  notice  of  such  facts.^ 

§  328.  Facts  Which  May  be  thus  Brought  Home  to 
Purchaser. — The  facts  which  may  be  brought  to  the  knowl- 
edge of  the  purcliaser  in  this  manner  are  not  confined  to 
such  as  disclose  an  outstanding  legal  title  to  the  premises 
which  may  have  escaped  attention  by  reason  of  a  failure  to 
comply  with  the  registry  laws.  So  where  a  prior  deed, 
under  which  the  purchaser  holds,  shows  upon  its  face  that 
it  is  fraudulent,  he  will  be  charged  with  notice  of  such 
fraud." 

§  329.  Contract  to  Convey. —  The  rule  also  applies  with 
equal  force  where  the  fact  to  be  brought  home  to  the  pur- 
chaser is  a  contract  to  convey,  which  merely  raises  an  equity 
in  favor  of  the  covenantee,  and  where  such  fact  is  buried 
in  the  contract,  the  existence  of  which  is  only  made  known 
by  the  title  paper.  As  where  the  contest  lay  between  two 
parties,  one  of  whom  (the  plaintiff)  had  a  contract  for  a 
mortgage  which  was  to  be  a  second  hen  upon  the  premises, 
but  which  had  been  fraudulently  witliheld  by  the  other  con,- 
tracting  party,  and  the  defendant  who  had  taken  a  mort- 
gage upon  the  same  premises,  given  in  violation  of  the 
terms  of  the  contract.  The  deed  to  the  mortgagor  recited 
that  it  was  made  in  pursuance  of  a  contract  of  sale  between 
the  grantor  and  the  plaintiff,  of  which  the  grantee  had  be- 
come the  assignee  or  purchaser,  and  as  such,  entitled  to  a  ful- 
fillment thereof,  by  virtue  of  this  conveyance, —  giving  the 
date  of  said  contract.     In  making  the  assignment  of  his  con- 

1  Nelson  v.  Allen,  1  Yerg.,  360. 

2  Johnson  v.  Thweatt,  18  Ala.,  741;  Steedman  v.  Poole,  6  Hare,  193; 
Sergeant  v.  Ingersoll,  15  Pa.  St.,  343;  Ck)y  v.  Coy,  15  ilinn.,  119;  Dudley 
r.  Witter,  46  Ala.,  664 ;  Campbell  v.  Roach,  45  Ala.,  667 ;  Newsome  v.  Col- 
lins, 43  Ala.,  656. 


NOTICE   FKOM   TITLE   PAPEKS.  183 

tract  mentioned  in  the  deed,  plaintiff  and  the  mortgagor  en- 
tered into  a  written  agreement,  by  which  the  latter  agreed,  as 
part  of  the  consideration  of  such  assignment,  that  he  would 
execute  to  plaintiff  a  mortgage  for  a  stipulated  sum,  which 
should  be  a  Hen  prior  to  all  others,  except  the  one  men- 
tioned therein.  It  was  not  questioned  that  the  mortgagee, 
who  was  made  a  party  defendant  with  the  mortgagor,  by 
the  recitals  in  the  deed  to  his  grantor  was  affected  with  no- 
tice of  the  contract  of  sale  therein  referred  to;  but  this  was 
not  sufficient,  for  of  itself  it  would  not  disclose  plaintiff's 
equity.  It  was,  however,  sufficient  to  charge  the  mort- 
gagee with  notice  that  the  title  had  passed  through  the 
plaintiff's  hands,  by  means  of  such  contract  and  the  assign- 
ment thereof  to  his  co-defendant,  the  mortgagor.  This  ren- 
dered the  assignment  a  necessary  link  in  the  chain  of  title, 
and  although  it  was  purely  equitable  in  its  nature,  would  be 
binding  upon  all  purchasers  with  notice.' 

§  330.  Tendor's  Lien. —  The  vendor's  lien  for  the  pur- 
chase money  is  another  equitable  interest  which  will  be 
protected  as  well  by  notice  through  the  paper  evidences  of 
title  as  otherwise.  So  where  the  property  purchased  had 
previously  been  sold  on  a  credit,  Avhich  fact  appeared  by 
the  recitals  in  one  or  more  of  the  deeds,  this  was  held  suffi- 
cient notice  to  put  the  purchaser  upon  inquiry  as  to  whether 
the  same  had  ever  been  paid,  and  failing  to  make  such  in- 
quiry the  land  would  be  charged  in  his  hands  with  the  orig- 
inal hen  for  the  purchase  money.^  But  where  a  sufficient 
time  had  elapsed  to  bar  a  claim  for  the  purchase  money, 
under  the  statute  of  limitations,  it  was  held  that  the  pur- 
chaser might  assume  that  it  had  been  paid.' 

§  331.  Who  Affected. —  The  notice  derived  from  title 
papers  will  affect  not  only  those  who  may  be  classed  as 
subsequent  purchasers.     It  has  been  held  binding  upon  prior 

1  Acer  V.  Westcott,  1  Lans.,  193;  S.  C,  46  N.  Y.,  384. 
2Honore's  Ex'r  v.  Bakewell,  6  B.  Mon.,  67;  Thornton  v.  Knox,  id.,  74: 
Deason  v.  Taylor,  53  IVIiss.,  697;  Montefiore  v.  Browne,  7  H.  L.,  241. 
3  Avent  V.  McCorkle,  45  Miss,,  221. 


iSi  KOTICE    FKOM   TITLE    TAPERS. 

parties  as  well.  Where  a  portion  of  the  real  estate  included 
in  a  mortgage  has  been  aliened  by  the  mortgagor,  by  deed 
of  general  Avarranty,  equity  wiU  require  the  mortgagee 
to  proceed  against  the  propert}'  for  satisfaction  of  his  mort- 
c-afe  debt,  in  the  inverse  order  of  its  alienation.  And  when 
lie  has  released  a  portion  of  the  premises  from  the  incum- 
brance, AAith  knowledge  or  notice  of  the  i^rior  alienation  of 
another  portion,  he  will  not  be  permitted  to  foreclose 
against  that  portion  previously  aliened,  except  upon  condi- 
tion that  he  credits  the  debt  with  the  value  of  the  property 
by  him  released.  Such  notice  has  been  implied  from  the 
recitals  in  a  release  given  under  such  circumstances,  making 
mention  of  the  assignment  b}^  the  releasee,  as  further  secu- 
rity, of  a  bond  and  mortgage  given  by  the  ahenee  of  the 
portion  previously  conveyed.  The  fact  that  an  instrument 
executed  by  himself,  affecting  the  title  to  the  property, 
acknowledged  the  assignment  of  a  security  taken  for  the 
purchase  price  of  a  portion  of  the  land  included  in  his 
mortgage,  w^as  held  to  be  a  conclusive  presumption  that  he 
knew  when  he  executed  that  instrument  that  the  property 
incumbered  by  such  security  had  been  aliened  by  the  mort- 
gagor.' 

§  332.  Different  Kinds  of  Property. —  It  has  been  stated 
elseAvhere  that  this  doctrine  is  most  frequently  applied  to 
cases  involving  the  title  to  real  property.-  This,  however, 
is  only  incidental  to  the  difference  in  the  manner  and  mode 
of  transferring  the  title  to  property  of  a  permanent  nature 
from  that  employed  to  convey  that  Avhich  is  movable. 
There  is  no  difference  in  principle  between  the  effect  of 
recitals  in  papers  by  which  the  title  lo  real  estate  and  per- 
sonal property  is  transmitted,  when  the  latter  is  conveyed 
or  affected  by  written  instruments.  This  is  generally  either 
where  the  title  is  acquired  under  a  wiU,  or  a  chattel  mort- 
gage or  trust  deed. 


1  Guion  V.  Knapp,  6  Paige,  85. 

2  4nie,  §307. 


NOTICE    FEOM   TITLE   TAPEKS.  185 

§  333.  Stocks  Transferred  by  Executor. — The  x)rinciple 
here  discussed  was  apphed  in  an  early  English  case,  where 
the  property  involved  was  certain  stocks,  which  were  as- 
signed by  an  executor  to  a  broker,  who  took  the  same  in 
satisfaction  of  a  debt  due  from  such  executor.  Knowledge 
of  the  fact  that  the  stocks  were  received  by  the  executor 
from  the  testatrix  was  brought  home  to  the  assignees  of  the 
stocks,  but  not  that  he  had  actual  notice  or  knowledge  of 
the  contents  of  the  will.  It  was  nevertheless  held  by  the 
master  of  the  rolls,  that,  as  he  could  not  make  out  his  title 
independent  of  the  will,  he  was  put  upon  inquiry  as  to  its 
contents.  And,  had  he  inquired,  he  would  have  discovered 
the  falsity  of  the  representations  made  to  him  by  the  execu- 
tor with  respect  to  his  right  to  assign  the  stocks.' 

§  334.  Personal  Property. —  So  where  personal  property 
of  great  value  was  conveyed  in  trust  to  secure  a  trifling  in- 
debtedness, conditioned  that  the  property  thus  transferred 
might  remain  in  the  possession  of  the  grantor  for  an  indefi- 
nite time,  he  having  the  right  to  use  and  consume  the  same 
according  to  his  own  pleasure,  until  the  happening  of  an 
uncertain  event.  The  property  thus  conveyed  included 
debts  due  the  grantor  as  well  as  chattels  in  possession,  and 
according  to  the  construction  placed  upon  the  terms  of  the 
instrument,  the  grantor  was  allowed  to  collect  these  debts 
without  being  required  to  account  to  the  trustee  for  the 
money  so  collected.  It  was  held  that  this  deed  bore  upon 
its  face  such  unmistakable  evidence  of  its  fraudulent  char- 
acter, that  any  one  reading  it  must  be  presumed  to  know 
that  it  was  a  contrivance  to  hinder  and  defraud  creditors. 
And  that  a  purchaser  whose  title  to  the  property  was  traced 
through  this  deed  was  affected  with  notice  of  aU  of  its 
provisions." 

§  335.  Inquiry  Extends  to  Examination  of  Papers. — 
The  rules  will  apply  to  any  species  of  property  wliich  may 
be  legally  transferred  by  written  instruments,  or  where  the 

1  Hill  V.  Simpson,  7  Ves.  Jr.,  152. 

2  Jolinson  V.  Thweatt,  18  Ala.,  741-7. 


186  NOTICE    FEOM   TITLE    PAPEKS. 

title  depends  upon  any  writing.  And  it  lias  been  held  that 
the  inquiries  which  the  purchaser  is  under  obligation  to 
make  by  reason  of  his  knowledge  of  the  existence  of  such 
writing  must  not  stop  short  of  an  inspection  of  the  docu- 
ments themselves.* 

§  386.  Deed  of  Real  Estate  Coiitaining  Bill  of  Chat- 
tels.—  But  Avhere  a  conveyance  of  real  estate  in  which  was 
incorporated  a  bill  of  sale  of  chattels  had  been  placed  upon 
record,  it  was  held  that  a  purchaser  of  the  real  estate  was 
not  thereby  charged  with  notice  of  a  hen  attempted  to  be 
retained  upon  the  personalty .- 

1  Christmas  v.  Mitchell,  Sired.  Eq.,  535. 
2MueUer  v.  Engeln,  13  Bush(Ky.),  441. 


CHAPTEE  YI. 

LIS  PENDENS. 

§  337.  Lord  Bacon's  Rule. 

338.  Public  Policy. 

339.  Doctrine  of  Constructive  Notice  Applied. 

340.  Views  of  Judge  Story. 

341.  Chancellor  Kent. 

342.  Eule  of  Equity  Jiurisprudence. 

342a.  Actions  in  Which  the  Doctrine  Has  Been  Applied. 

343.  Applied  to  Action  of  Ejectment. 

344.  The  Doctrine  Indispensable. 

345.  Lord  tiardwicke. 

346.  Effect  of  Revivor. 

347.  Consideration  No  Protection  to  Purchaser. 

348.  Commencement  of  the  Suit. 

349.  Service  of  Process. 

350.  Harshness  of  the  Rule. 

351.  Property  to  be  Identified. 

352.  Alimony. 

353.  Creditors'  BiU. 

354.  Jurisdiction. 

355.  Holder  of  Legal  Title  Must  be  Impleaded. 

356.  Equitable  Interest  Between  Defendants  Unaffected. 

357.  Suit  Must  be  Continuously  Prosecuted. 

358.  Effect  of  Dismissal. 

359.  Dihgence  in  Pi-osecution. 

360.  Rule  Not  Extended  to  Affect  Others  than  Purchasers. 

361.  Prior  Mortgagee  Unaffected. 

362.  Foreclosure  of  Prior  Mortgage. 

363.  Antecedent  Equity. 

364.  Same. 

365.  Holder  of  Equity  May  Acquh-e  Legal  Title. 

366.  Holder  of  Contmgent  Right. 

367.  Waiver  by  Plaintiff. 

368.  Grantor  Must  be  a  Party  at  Time  of  Purchase. 

369.  Generally  Confined  to  Real  Estate. 

370.  Pm-chaser  of  Securities. 

371.  Same  —  Illustration  —  Trusts. 
373.  Does  Not  Affect  Negotiable  Paper. 


ISS  LIS    PENDENS. 

§  373.  Peculiar  Band  of  Property. 

374.  Statutory  Provisions. 

375.  Purchaser  Not  Affected  Personally  —  Effect  of  Judgment. 

376.  Statute  of  Limitations  Does  Not  Run  Dm'ing  Suit. 

377.  Purcliaser  at  Execution  Sale. 

§  337.  Lord  Bacon's  Rule* — The  rule  by  which  a  pur- 
chaser of  property,  jpendente  lite,  is  bound  by  the  decree  of 
the  court,  is  thus  expressed  by  Lord  Bacon  :  "  Ko  decree 
biudeth  any  that  cometh  in  honajide  by  conve3^ance  from 
the  defendant,  before  the  bill  is  exhibited,  and  is  made  no 
party  by  bill  or  order ;  but  when  he  comes  in  jpendeiite  lite, 
and  while  the  suit  is  in  full  prosecution,  and  Avithout  any 
color  of  allowance  or  privity  of  court,  there  regularly  the 
decree  bindeth.  But  if  there  were  any  intermissions  of 
suit,  or  the  court  made  acquainted  with  the  conveyance,  the 
com't  is  to  give  order  upon  the  special  matters  according  to 
.justice."' 

§338.  Public  Policy. —  The  language  of  the  courts  in 
describing  the  operation  of  this  ride  as  constructive  notice 
has  not  escaped  learned  criticism.  Lord  Ckanwokth,  in  Bel- 
lamy V.  Sabine,-  regards  it  as  "  scarcely  correct  to  speak  of 
lis  2>&nde7i8  as  affecting  a  purchaser  through  the  doctrine  of 
notice.  ...  It  affects  him  not  because  it  amounts  to 
notice,  but  because  the  law  does  not  allow  litigant  parties 
to  give  to  others,  pending  the  litigation,  rights  to  the  prop- 
erty in  dispute  so  as  to  prejudice  the  opposite  party."  It 
has  also  been  held  that,  as  the  doctrine  operates  in  cases 
where  there  is  no  possibility  of  the  purchaser  having  notice 
of  the  pendency  of  the  suit,  therefore  it  rests  upon  con- 
siderations of  pubhc  policy,  and  no;t  upon  any  presumption 
of  notice.* 

§  330.  Doctrine  of  Constructive  Notice  Applied. —  It  is 
undoubtedly  true  that  the  rule,  which  at  times  works  harshly, 

1  Bacon's  Works,  vol.  2,  479. 

-1  DeG.  &  J.,  566-78;  Culpepper  v.  Aston,  12  Ch.  Cas.,  115;  Sorroll 
w.  Carpenter,  2  P.  Wms.,  482;  Garth  v.  Ward,  2  Atk.,  174;  Worsley  v. 
Earl  of  Scarborough,  3  id.,  392. 

3 Newman  v.  Chapman,  2  Rand.,  93. 


LIS    PENDENS.  189 

is  only  justified  by  the  necessit}^  there  exists  of  putting  an 
end  to  litigation  and  jDre venting  the  defendant  from  evading 
the  decree  b}"  parting  with  the  property  in  dispute  after  the 
suit  is  instituted,  and  before  it  has  reached  final  judgment 
or  decree.  But  courts  of  equity  would  not- tolerate  a  rule 
merely  upon  grounds  of  necessity,  which  operated  to  divest 
the  title  to  property  acquired  not  only  in  good  faith,  but  with- 
out any  means  whatever  of  gaining  a  knowledge  of  adverse 
claims.  It  is  no  explanation  of  the  principle  upon  which 
the  rule  is  founded  to  say  that  "the  law  does  not  allow  liti- 
gant parties  to  give  to  others,  pending  the  litigation,  rights 
to  the  property  in  dispute,  so  as  to  prejudice  the  opposite 
party."  The  rule  does  not  operate  simply  to  prohibit  liti- 
gant parties  from  transferring  their  interests.  It  also  pre- 
vents others  fi'om  purchasing  while  the  title  is  being 
litigated.  It  could  hardly  be  conceived  that  a  court  of 
equitable  jurisdiction  would  entertain  a  rule  so  harsh  in  its 
operations  were  it  not  for  the  publicity  of  judicial  pro- 
ceedings, b}^  which  the  purchaser  might  be  enabled  to  gain 
a  knowledge  of  the  manner  in  which  his  vendor's  title  was 
attacked.  It  is  perfectly  safe  to  say  that  if  the  proceedings 
were  conducted  with  such  secrecy  as  to  render  it  utterly 
impossible  for  a  purchaser  to  obtain  any  information  of  the 
controversy  before  it  was  too  late,  the  doctrine  of  lis  pendens 
never  would  have  been  promulgated.  There  is  then  no  im- 
propriety apparent  from  the  reason  of  the  rule,  in  declaring 
that  the  pendency  of  a  suit  res])ecting  the  title  to  real  prop- 
erty is  such  notice  to  the  world  that  the  property  which  is 
the  subject  of  the  litigation  ^vill  be  bound  by  the  decree  in 
the  hands  of  a  purchaser  actually  ignorant  of  the  litigation.^ 

iBlanchard  v.  Ware,  43  la.,  530;  BoiTOwscale  v.  Tuttle,  5  Allen,  377 
Havens  v.  Adams,  8  Allen,  363;  McPherson  v.  Housel,  2  Beasley,  299 
Hersey  v.  Turbett,  27  Pa.  St.,  418;  Boulden  r.  Lanahan,  29  Md,,  200 
Inloes'  Lessee  v.  Harvey,  11  Md.,  519;  Tongue  v.  Morton,  6  Har.  «&  J., 
21;  Eeal  Estate  Sav,  Inst,  v.  Collonious,  63  Mo,,  290;  O'Reilly  v.  Nichol- 
son, 45  Mo.,  160;  Holman  v.  Patterson's  Heirs,  29  Ark.,  357;  Brandage 
V.  Biggs,  25  Ohio  St.,  652;  Seabrook  v.  Brady,  47  Ga.,  650;  Douglass  v. 
McCrackin,  52  Ga.,  596;  Tharpe  v.  Dunlap,  4  Heisk.,  674. 


190  us   PENDENS. 

§  340.  Tiews  of  Judge  Story.— This  view  of  the  ques- 
tion is  also  well  supported  by  authority.  Judge  Story  has 
said  that  "  every  man  is  presumed  to  be  attentive  to  what 
passes  in  the  courts  of  justice  of  the  state  or  sovereignty 
Avhere  he  resides.  And  therefore  a  purchase  made  of  prop- 
erty actually  in  Vitigation,  2?end£nte  lite,  for  a  valuable  con- 
sideration, and  without  any  express  or  implied  notice  in 
point  of  fact,  affects  the  purchaser  in  the  same  manner  as 
if  he  had  such  notice;  and  he  will  accordingly  be  bound 
by  the  judgment  or  decree  in  the  suit."  ^ 

§3  +  1.  Chancellor  Kent. —  So,  in  the  leading  American 
case  of  Murray  v.  Ballon,^  Chancellor  Kent  declares  that 
"  a  Uspetidens  duly  prosecuted,  and  not  collusive,  is  notice  to 
a  purchaser,  so  as  to  affect  and  bind  his  interest  by  the  decree." 

§  34t2.  Rnle  of  Eqnity  Jnrisprudence. —  This  doctrine 
lias  been  generally  accepted  in  courts  of  equity  in  this  coun- 
try and  Great  Britain,  and  the  rule  as  declared  above,  ex- 
cept where  abrogated  or  modified  b}^  statute,  continues  to 
form  a  part  of  the  equity  jurisprudence  of  both  countries. 
It  has  been  held  that  this  is  purely  a  doctrine  of  equity, 
recognized  and  enforced  in  courts  of  equity  alone,  and  can- 
not be  rendered  available  in  proceedings  at  law.* 

§  342a.  Actions  in  Which  the  Doctrine  Has  Been  Ap- 
plied.—  Among  the  actions  to  which  this  doctrine  will  apply 
are  suits  for  the  foreclosure  of  unrecorded  mortgages;^  to 

1  Story's  Eq.  Jur.,  sec.  405. 

-1  Johns.  Ch.,  566.  See,  also,  Edwards  v.  Banksmith,  35  Ga.,  213; 
Harris  v.  Carter,  3  Stew.,  233;  Murray  v.  Finster,  2  Johns.  Ch.,  155; 
Heatley  v.  Finster,  id.,  158;  Green  v.  Slayter,  4  Johns.  Ch.,  38;  Salis- 
bury V.  Morse,  7  Lans.,  359;  Cook  v.  Mancius,  5  Jolms.  Ch.,  89;  Sedg- 
wick V.  Cleveland,  7  Paige,  287 ;  Van  Hook  v.  Throckmorton,  8  Paige, 
38;  Wliite  v.  Carpenter,  2  Paige,  217;  Jackson  v.  Losee,  4  Sandf.  Ch., 
381;  Jackson  v.  Andrews,  7  Wend.,  152;  Leitch  v.  Wells,  48  Barb.,  637; 
48  N.  Y.,  585;  Chapman  v.  West,  17  N.  Y.,  125;  Ayi-ault  v.  Murphy,  54 
N.  Y.,  203;  Harrington  v.  Slade,  22  Barb.,  161 ;  Pratt  v.  Hoag,  5  Duer, 
631. 

3 King  V.  Bill.  28  Conn.,  593. 

<  Chapman  r.  West,  17  N.  Y.,  125;  Center  v.  Bank,  22  Ala.,  743;  Mc- 
Cutchen  v.  Miller,  31  Miss.,  65. 


LIS    PENDENS.  191 

foreclose  vendors'  liens ;  ^  to  set  aside  a  decree  of  partition ;  - 
to  enforce  the  specific  performance  of  contracts  for  the  sale 
of  real  estate ; '  to  enforce  a  charge  against  real  property, 
whatever  be  the  form  of  action;^  or  in  almost  any  suit 
brought  for  the  purpose  of  determining  the  title  to  real  prop- 
erty, where  the  record  of  the  instruments  under  which  title 
is  claimed  is  not  sufficient  to  give  notice  to  subsequent  pur- 
chasers.^ Actions  in  the  nature  of  creditors'  bills  have  been 
considered  as  giving  notice  to  subsequent  purchasers  of  the 
particular  property  involved  in  the  controversy,  of  the 
equitable  lien  claimed.  But  to  have  this  effect,  it  must  be 
so  definitely  described  that  there  can  be  no  question  as  to 
the  property  intended.^ 

§343.  Applies  to  Action  of  Ejectment. —  It  has  also 
been  repeatedly  decided,  that  where  an  action  of  ejectment 
is  instituted  against  the  tenant  in  possession,  one  coming 
into  possession  of  the  subject  of  litigation,  by  assignment 
or  otherwise,  pendente  lite,  will  be  bound  by  the  judgment, 
although  he  be  not  made  a  party  defendant,  and  may  be 
ejected  under  the  judgment  against  his  assignor.''  Such  as- 
signee of  the  possession  would  be  liable  for  mesne  profits, 
and  could  not  set  up  title  in  himself  in  bar  to  the  action 
therefor.*^    The  application  of  the  doctrine,  however,  is  con- 

1  Center  v.  The  Bank,  22  Ala.,  743. 

2Eeal  Est.  Sav.  Inst.  v.  CoUonious,  63  Mo,,  290. 

3Blancliarcl  v.  Ware,  43  Iowa,  530. 

^Seabrook  v.  Brady,  47  Ga.,  650. 

sTharpe  v.  Dunlap,  4  Heisk.,  674;  Cockrill  v.  Maney,  2  Tenn.  Ch.,  49; 
Wickliffe  v.  Breckenridge,  1  Bush,  427;  Hersey  v.  Turbett,  27  Pa.  St., 
418. 

6 See  McDermott  v.  Strong,  4  Johns.  Ch.,  687;  Weed  v.  Pierce.  9  Cow., 
722;  Hadden  v.  Spader,  20  Johns.,  554;  Ednieston  v.  Lyde,  1  Paige,  637; 
Farnhani  v.  Campbell,  10  Paige,  598;  Corning  v.  Wliyte,  2  Paige,  567; 
U.  S.  Bank  v.  Burke,  4  Blackf.,  141 ;  Blake  v.  Bigelow,  5  Ga.,  437. 

'Howard  v.  Kennedy,  4  Ala.,  592;  Jackson  v.  Tuttle,  9  Cow.,  233; 
Jones  V.  Chiles,  2  Dana,  25 ;  Smith  v.  Trabue,  1  McLean,  87 ;  Wallen  v. 
Huff,  3  Sneed,  82;  Hickman  v.  Dale,  7  Yerg.,  149. 

8  Jackson  v.  Stone,  13  Jolms.,  447;  Bradley  v.  McDaniel,  3  Jones,  128; 
Fogarty  v.  Sparks,  22  Cal.,  142;  BoUin  v.  Connelly,  73  Pa.  St.,  836;  HUl 
V.  Ohphant,  41  Pa.  St.,  364. 


102  LIS    TEXDENS. 

fined  to  proceedings  in  courts  of  general  or  superior  juris- 
diction. It  does  not  apply  to  proceedings  before  a  board 
of  supervisors,  for  the  condemnation  of  land  for  public 
purposes  or  the  like.' 

§  344.  The  Doctrine  Indispensable. —  The  harshness  of 
this  rule  as  applied  to  cases  of  equitable  cognizance,  though 
frequently  acknowledged  by  learned  chancellors,  has  not 
served  to  deter  them  from  adhering  to  it  as  a  safe  doctrine, 
and  one  which  seemed  indispensable  to  the  enforcement  of 
their  decrees.  To  hold  that  purchasers  of  property,  the 
title  to  which  was  in  litigation  at  the  time  of  the  transfer, 
should  be  unaflfected  by  the  decree  unless  brought  in  as 
parties  to  the  suit  after  the  purchase,  would  be  to  place  it 
within  the  power  of  a  defendant  holding  under  a  colorable 
title,  to  prolong  the  litigation  indefinitelv.  The  case  of 
Martin  v.  Stiles  -  fairly  illustrates  tlie  extent  to  Avhich  the 
courts  have  gone  in  supporting  the  principle  involved  in 
Lord  Bacox's  rule.  There  the  bill  was  filed  ,and  process 
served  in  the  year  1640,  and  the  case  abated  by  the  death 
of  one  of  the  parties  about  eight  years  thereafter ;  the  pur- 
chase was  made  about  three  years  after  the  abatement,  and 
the  case  was  revived  about  eleven  years  subsequent  to  the 
purchase,  and  the  decree  one  year  thereafter ;  being  twent}'- 
three  years  subsequent  to  the  institution  of  the  suit,  fifteen 
years  subsequent  to  the  abatement,  and  twelve  j^ears  after 
the  purchase.  It  was  nevertheless  held  that  the  apparent 
laches  in  the  prosecution  of  the  suit  was  excused  by  the 
wars  prevalent  at  the  time,  and  that  the  purchase  wliile  the 
suit  was  in  abeyance  was  made  pendente  lite,  and  that  the 
purchaser  was  consequently  bound  by  the  decree.' 

iCurran  v.  Shattuck,  24  Cal.,  427. 

^  Cited  in  Bishop  of  Winchester  v.  Paine,  11  Ves.  Ch.,  194;  S.  C,  1 
Ch.  Ca.,  150. 

3  The  doctrine  was  applied  where  there  was  a  purchase  from  the  suc- 
cessful party  in  a  partition  suit,  after  appeal,  and  before  the  suit  was 
finally  determined.  The  cause  was  remanded,  and  the  mandate  of  the 
supreme  covurt  had  not  reached  the  trial  court.  Real  Est.  Sav.  Inst.  v. 
Collonious,  63  Mo.,  290;  Jackson  v.  Warren,  33  111.,  331 ;  Gihnan  v.  Ham- 


LIS   PENDENS.  193 

§345.  Lord  Hardwicke. —  In  Garth  v.  Ward,^  Lord 
Hakdwicke,  in  pronouncing  the  opinion,  says :  "  A  decree 
dismissing  a  bill  of  redemption  would  operate  equally  in 
favor  of  the  mortgagee  against  any  person  to  whom  the 
mortgagors  should,  dm-ing  the  pendency  of  that  suit,  con- 
vey, as  against  liimself.  .  ,  .  So,  in  the  case  of  a  mort- 
gagor who  comes  here  for  redemption,  if,  during  such  suit, 
he  should  assign  the  equity  of  redemption,  and  in  the  final 
hearing  of  the  cause  there  should  be  a  decree  against  the 
mortgagor,  will  not  the  assignee  of  the  equity  of  redemption 
be  bound  by  this  decree  ? " 

§  34:6.  Effect  of  Revivor. —  So,  also,  where  a  suit  was  in- 
stituted to  forclose  a  mortgage,  and  during  its  pendency 
the  mortgagor  executed  a  second  mortgage  upon  the  same 
premises  and  died  prior  to  the  decree,  on  reviving  the  suit 
against  his  personal  representatives  it  was  held  unnecessary 
to  make  parties  of  mortgagees  or  purchasers  who  became 
such  after  the  institution  of  the  suit.- 

§  347.  Consideration  No  Protection  to  Purchaser. — 
Where  the  doctrine  is  in  force  independent  of  any  statutory 
provision,  the  purchaser  pendente  lite  will  not  be  protected 
because  he  paid  a  valuable  consideration  and  purchased 
Avithout  actual  notice  of  the  pendency  of  the  suit ;  but  the 
subject  of  litigation  will  be  affected  by  the  decree  to  the 
same  extent  as  though  the  purchase  were  made  with  fuU 
knowledge  of  the  pendency  of  the  action.^ 

§348,  Commencement  of  the  Suit. —  In  determining 
whether  a  purchase  of  property  is  made  during  the  pend- 

ilton,  16  ni.,  225;  Kern  v.  Hazerigg,  11  Ind.,  443;  Ti-uitt  v.  Tniitt,  38 
Ind.,  16;  Knowles  v.  RabUn,  20  la.,  101;  Loomis  r.  Riley,  24  lU.,  307; 
Cooley  i;.  Brayton,  16  111.,  10;  Preston  v.  Tubbin,  1  Vern.,  286;  Higgins 
V.  Shaw,  2  Dr.  &  War.,  356. 
12  Atk.,  174-5. 

2  Bishop  of  Winchester  v.  Paine,  11  Ves.  Ch.,  194;  Montgomery  v. 
Birge,  31  Ark.,  491. 

3  Norton  V.  Birge,  35  Conn.,  250;  King  v.  Bill,  28  id.,  598;  Ray  v.  Roe, 
2  Blackf.,  258;  Green  v.  White,  7  Blackf,,  242;  Ferrier  v.  Buzick,  6  la., 
258. 

13 


194  LIS   PENDENS. 

ency  of  a  suit  affecting  the  title  thereof,  an  important 
matter  for  consideration  is  what  amounts  to  the  cojnmence- 
ment  of  a  suit.^  It  is  necessary  to  decide  this  in  order  to  be 
able  to  determine  whether  at  the  date  of  the  purchase,  there 
was  a  lis  jy^^ndens  within  the  meaning  of  the  equitable  rule. 
For  the  purpose  of  ascertaining  whether  the  suit  is  brought 
within  the  period  of  statutory  limitation,  and  perhaps  for 
some  other  purposes,  the  suit  has  been  held  commenced 
from  the  date  of  the  issuance  of  the  original  process,-  and 
as  between  the  parties  to  the  suit,  or  their  personal  repre- 
sentatives, from  the  suing  out  of  process,  whether  the  same 
be  issued  and  served  or  not.''  But  in  cases  generally,  and 
especially  in  those  where  the  question  as  to  the  validity  of  a 
purchase  depends  upon  whether  the  property  purchased  is 
the  subject  of  litigation  at  the  time,  the  suit  will  not  be  re- 
garded as  pending  until  the  service  of  original  process, 
whether  the  same  is  served  personally  upon  the  defendant, 
or  by  any  method  prescribed  by  statute  as  a  substitute  for 
personal  service.*     And  when,  for  the  service  of  summons, 

1  Sorrell  v.  Carpenter,  2  P.  Wms. ,  482 ;  Worsley  v.  Earl  of  Scarboro,  3 
Atk.,392;  Walker  ?\  SmaUwood,  Arab.,  676;  Lowther  v.  Carlton,  2 
Atk.,  242;  Self  v.  Maddox,  1  Vern.,  459:  Finch  v.  Newham,  2  id.,  216; 
Wickliffe  v.  Breckenridge,  1  Bush  (Ky.),  427;  Metcalf  v.  Pulvertoft,  2 
Ves.  &  Beam.,  200. 

2PindeU  v.  Maydwell,  7  B.  Monr.,  314;  Shari?  v.  Maguire,  19  Cal.,  577; 
State  Bank  v.  Cason,  10  Ark.,  479;  State  Bank  v.  Brown,  12  Ark.,  94; 
Shaw  V.  Padley,  64  Mo.,  519. 

3  McLaren  v.  Thurman,  8  Ark.,  313;  Maddox  v.  Humphries,  30  Tex., 
494;  Lylev.  Bradford,  7  Mou.,  111. 

4  Clark  V.  Helms,  1  Root  (Conn.),  486;  Dunn  r.  Games,  1  McLean,  321 ; 
Games  v.  StOes,  14  Pet.,  322;  Clevinger  v.  Hill,  4  Bibb,  498;  Chaudron 
V.  Magee,  8  Ala.,  570;  Hopkins  v.  McLaren,  4  Cow.,  667;  Meux  v.  An- 
thony, 11  Ark.,  411 ;  Downer  v.  Garland,  21  Vt.,  362;  Gates  v.  Bushnell. 
9  Conn.,  530;  Goodwin  v.  McGehee,  15  Ala.,  232;  Lyie  v.  Bradford,  7 
Mon.,  Ill;  Lytle  v.  Pope,  11  B.  Mon.,  297;  Lee  v.  Averell,  1  Sandf.,  731 ; 
Spalding  v.  Butts,  6  Conn. ,  28 ;  SidweU  v.  Worthington,  8  Dana,  74 ; 
Jencks  v.  Phelps,  4  Conn.,  149;  Bacon  v.  Gardner,  23  Miss.,  60;  Fowler 
V.  Byrd,  Hemst.,  213;  Metcalf  v.  Smith,  40  Mo.,  572;  Samuels  v.  Shel- 
ton,  48  Mo.,  444;  Bailey  v.  McGinniss,  57  Mo.,  362;  Shaw  v.  Padley,  64 
Mo.,  519;  Allen  v.  Poole,  54  Miss.,  323;  Allen  v.  Mandville,  26  Miss.,  397; 


LIS   PENDENS.  195 

or  subpoena  in  chancery,  there  is  substituted  the  publication 
of  a  notice  as  ordered  by  the  court,  such  publication  should 
be  complete,  before  the  suit  could  be  regarded  as  pending 
so  as  to  affect  with  notice,  a  purchaser  without  actual  notice 
or  knowledge  of  the  claim  adverse  to  his  vendor.^ 

§  349.  Service  of  Process.— The  strictness  with  which 
the  courts  insist  upon  service  of  process  as  the  commence- 
ment of  the  suit  may  be  illustrated  by  the  case  of  Miller 
V.  Kershaw.^  This  was  a  chancery  suit,  and  it  was  held  that 
the  acceptance  of  service  of  the  subpoena,  as  of  a  date  prior 
to  that  upon  which  it  was  actually  served,  would  not  make 
such  a  Us  pende?is  before  the  day  of  actual  service.* 

§350.  Harshness  of  the  Eiile. —  Although  this  is  pe- 
culiarly a  doctrine  of  equitable  origin,  it  is  by  no  means 
one  which  is  a  favorite  with  the  courts  exercising  chancery 
jurisdiction.  The  harshness  of  its  operation  when  applied 
to  cases  where  the  subject  of  litigation  has  been  pm'chased 
in  good  faith,  Avithout  actual  notice  of  the  pendenc}^  of  the 
suit,  renders  it  necessary  and  proper  to  confine  it  within 
narrow  limits  and  give  the  innocent  purchaser  the  benefit 
of  all  technical  objections  which  may  be  interposed  to  the 
regularity  of  the  proceeding  by  which  his  vendor's  title  is 
attacked.  The  enforcement  of  the  rule  does  not  proceed 
upon  the  ground  that  the  purchaser  has  been  guilty  of 
fraud.  It  is  at  most  a  general  notice  of  an  equity,  and  can- 
not affect  any  particular  person  with  a  fraud,  unless  there 
was  a  special  notice  of  the  title  in  dispute  brought  home  to 
the  person  to  be  charged  with  notice.* 

Farmers'  Nat.  Bank  v.  Fletcher,  44  la.,  253;  King  v.  Bill,  28  Conn., 
593;  Dresser  v.  Wood,  15  Kan.,  344;  Haughwout  v.  Murjihy,  21  N,  J. 
Eq.,  118;  Weeks  v.  Tomes,  16  Hiin,  349. 

1  Bennett  v.  Williams,  5  Ohio,  461 ;  Clevlnger  v.  Hill,  4  Bibb,  498. 

2  1  BaUey'sEq.,  479. 

3  But  a  mere  iiTegiilarity  in  service,  where  it  appeared  that  defendant 
appeared,  would  suffice  as  against  one  who  came  in  by  man-iage  of 
lefendant  pendente  lite.     Koehler  v.  Bernicker,  63  Mo.,  368. 

<Mead  v.  Lord  Orrery,  3  Atk.,  235.  See,  also,  Hayden  v.  Bucklin,  9 
Paige,  513. 


190  LIS    TEKDENS. 

§  351.  Property  to  be  Identified. —  One  of  the  leading- 
principles  upon  wliicli  this  doctrine  is  founded  is  that  the 
specific  property  must  be  so  pointed  out  by  the  proceedings 
as  to  warn  the  whole  world  that  they  meddle  with  it  at 
their  peril.  There  must,  therefore,  be  something  in  the 
pleadings,  or  the  published  notice,  at  the  date  of  the  pur- 
chase, to  direct  the  purchaser's  attention  to  the  property  as 
the  identical  thing  which  is  the  subject  of  the  litigation.^ 
The  notice,  being  purely  constructive,  is  of  the  facts  con- 
tained in  the  bill  and  nothing  more.  Therefore,  unless  it 
contains  averments  calculated  to  affect  the  title  to  the  prop- 
erty, the  purchaser  will  be  unaffected.-  Nevertheless,  there 
may  be  peculiar  circumstances  that  extend  the  effect  of  the 
notice  to  a  portion  of  the  premises  not  directly  embraced  in 
the  objects  of  the  suits.^ 

§  352.  Alimony. —  "Where  a  petition  for  divorce,  in  gen- 
eral terms  prayed  for  alimony,  without  asking  for  an  allow- 
ance out  of  any  specific  property,  this  was  held  not  to 
operate  as  a  lien  until  the  decree  was  pronounced  fastening- 
it  upon  a  particular  property.* 

§353.  Creditors'  Bill. —  So  also,  a  creditors'  bill,  to 
operate  as  notice  under  this  doctrine,  must  be  so  definite  in 
the  description  of  the  property  to  be  charged,  that  any  one 
reading  it  can  learn  thereby  what  property  is  the  subject  of 
the  litigation.'^ 

» Lewis  V.  Mew,  1  Strob.  Eq.,  180. 

2  Griffith  V.  Griffith,  1  Hoflf.  Ch.  R.,  153;  Stone  v.  Connelly,  1  Mete. 
(Ky,),  652;  Ray  r.  Roe,  2  Blackf.,  258;  MiUerv.  Sherry,  2  WaU.,  237; 
Green  v.  Slayter,  4  Johns.  Ch.,  38;  Low  v.  Pratt,  53  III.,  438;  Jones  v. 
McNarrin,  68  Me.,  334;  Lewis  v.  Madison,  1  Munf.,  803;  Brown  v. 
Goodwin,  75  N.  Y.,  409;  Jafifray  v.  Brown,  17  Hun,  575;  Chapman 
V.  West,  17  N.  Y.,  125. 

3  Drake  v.  CroweU,  40  N.  J.  L.,  58. 
<  Hamlin  v.  Bevans,  7  Ohio,  161. 

5 Miller  v.  Sherry,  2  Wall.,  237;  McDermott  v.  Strong,  4  Johns.  Ch., 
687;  Hadden  v.  Spader,  20  Johns.,  554;  Weed  v.  Pierce,  9  Cow.,  722; 
Edmeston  v.  Lyde,  1  Paige,  637;  Corning  v.  Whyte,  2  id.,  567;  Famham 
V.  Campbell,  10  id.,  598;  U.  S.  Bank  v.  Burke,  4  Blackf.,  141;  Blake  v. 
Bigelow,  5  Ga.,  437;  McCutchen  v.  Miller,  31  Miss.,  65. 


LIS   PENDENS.  197 

§354.  Jurisdiction. —  In  order  that  the  purchaser  j^e^i- 
dente  lite  may  be  charged  with  constructive  notice  of  plaint- 
iff's equity,  by  reason  of  the  pendency  of  the  suit,  it  is 
necessary  that  the  coui't  to  which  the  summons  or  subpoena 
is  returnable  should  have  complete  jurisdiction  of  the  prop- 
erty in  dispute.^ 

§  355.  Holder  of  Legal  Title  Must  be  Impleaded. —  It 
is  not  sufficient  that  there  is  a  claim  made  by  the  pleadings 
to  the  property.  To  affect  a  purchaser  who  comes  in  pen- 
dente lite,  under  the  holder  of  the  legal  title,  with  construct- 
ive notice  of  the  equity  claimed  against  it,  the  holder  of  the 
legal  title  must  have  been  impleaded  at  the  time  of  the  pur- 
chase. Shoidd  he  be  brought  in  subsequent  to  the  purchase, 
the  lis  pendens  would  not  take  effect  by  relation,  so  as  to 
charge  the  purchaser  with  notice,  although  the  property 
may  have  been  specially  designated  in  the  bill.^ 

§  356.  Equitable  Interest  Between  Defendants  Unaf- 
fected.—  The  principle  of  the  rule  does  not  extend  to  the 
equitable  interest  of  one  of  the  defendants  in  an  action,  as 
against  his  co-defendant,  although  such  interest  be  apparent 
on  the  face  of  the  proceedings,  where  it  is  not  necessary  for 
the  purposes,  of  the  suit  that  effect  be  given  to  such  equi- 
table interest,  and  the  purchaser  from  the  defendant  in 
whom  the  legal  title  was  vested  had  no  notice  of  such 
equity,^ 

§  357.  Suit  Must  be  Continuously  Prosecuted. —  A  fur- 
ther restriction  upon  the  application  of  this  doctrine  is 
that,  in  order  to  render  the  pendency  of  the  suit  con- 
structive  notice  to  hona  fide  purchasers  for  value  and  Avith- 
out  actval  notice,  the  suit  must  be  continuously  prosecuted 
from  its  commencement  to  final  judgment  or  decree.*    And 

iCarrington  v.  Brent,  1  McL.,  167;  S.  C,  9  Pet.,  86. 

2  Carr  v.  Callaghan,  3  Littell,  365 ;  Macy  v.  Fenwick,  9  Dana,  198. 

SBeUamy  v.  Sabine,  1  De  G.  &  J.,  566. 

^Ferrier  v.  Buzick,  6  la.,  258;  McGregor  v.  McGregor,  21  la.,  441; 
Newman  v.  Chapman,  2  Rand.,  93;  Watson  v.  Wilson,  2  Dana,  406; 
Herriugton  v.  Herrington,  27  Mo.,  560;  Carter  v.  IVHlls,  30  Mo.,  432;  Hay- 
den  V.  Bucklin,  9  Paige,  512 ;  Clevinger  v.  Hill,  4  Bibb,  498 ;  Turner  v. 


198  LIS   PENDENS. 

where  a  proceeding  was  perpetuated  by  successive  continu- 
ances from  1842  to  1868,  it  was  justly  held  that  the  Us  pen- 
dens had  lost  its  force.' 

§  358.  Effect  of  Dismissal. —  In  Ludlow  v.  Kidd,'-  where 
the  suit  had  been  dismissed  and  a  biU  of  review  subse- 
quently fded,  it  was  held  that  the  suit  was  not  pending, 
within  the  meaning  of  the  rule,  between  the  time  of  dis- 
missal and  the  filing  of  the  bill  of  review  so  as  to  affect 
purchasers  with  notice.  It  was  held  the  same  where,  after 
dismissal,  a  writ  of  error  upon  the  judgment  of  dismissal 
was  sued  out,  and  the  purchaser  between  the  dismissal  and 
suing  out  the  writ  was  protected  in  his  purchase.' 

§359.  Diligence  in  Prosecution. —  To  entitle  a  party 
plaintiff  to  the  enforcement  of  this  principle  of  lis  pendens 
against  a  hona  fide  purchaser  without  actual  notice  of  the 
litigation,  such  party  will  be  required  to  show  reasonable 
diligence  in  the  prosecution  of  his  suit.  Accordingly, 
where  it  appeared  that  there  had  been  a  failure  on  the  part 
of  the  plaintiff  to  make  proper  parties,  whereby  the  litiga- 
tion was  unreasonably  and  vexatiously  protracted,  the  pur- 
chaser jyendente  lite  was  held  not  to  be  charged  with 
constructive  notice  of  the  suit.*  But  where  the  suit  abates 
by  the  death  of  a  party  the  lis  pendens  will  not  fail  if  it 
be  revived  without  unreasonable  delay.*  Where  the  appeal 
is  taken  by  plaintiff  it  must  be  dihgently  prosecuted.® 


Crebill,  1  Ohio,  372;  Lee  Co.  v.  Rogers,  7  Wall.,  181 ;  Jackson  v.  "Warren, 
32  ni.,  331;  Winborn  v.  Gan-ell,  3  Ired.  Eq.,  117;  Page  v.  Waring,  7G 
N.  Y.,  463;  Pi-ice  v.  McDonald,  1  Md.,  403;  Herringtou  v.  McCuUum,  73 
HI.,  476;  Petree  v.  BeU,  2  Bush,  58;  Trunble  v.  Boothy,  14  Ohio,  109. 

'  Fox  V.  Reeder,  28  Ohio  St.,  181. 

23  Oliio,  541.  But  the  suit  may  be  regarded  as  pending  continuously, 
notwithstanding  the  filing  of  a  supplemental  biU  prior  to  the  decree. 
Stoddard  v.  Myers,  8  Ohio,  203. 

3Eldridge  v.  Walker,  80  HI.,  270. 

^  Supra,  §357:  Ashley  u.  Cunningham,  16  Ark.,  168;  Debell  v.  Fox- 
worthy,  9  B.  Mon.,  228. 

5  Debell  w  Foxworthy,  9  B.  Mon.,  228. 

6  Oilman  v.  Hamilton,  16  111.,  225. 


LIS   PENDENS.  199 

§  360.  Rule  Not  Extended  to  Affect  Others  than  Pur- 
chasers.—  This  doctrine,  being  originally  invoked  by  courts 
of  equity  rather  as  a  measure  of  necessity,  to  prevent  a 
failure  of  justice,  than  on  account  of  its  consistency  Avitli 
abstract  justice,  and  being  employed  to  restrain  mere 
strangers  from  coming  in  2)ende}ite  lite,  by  acquiring  an  in- 
terest in  the  subject  of  litigation,  the  courts  have  uniformly 
refused  to  extend  its  provisions  to  others  who  were  not  inir- 
chasers  in  the  strict  sense  of  the  term.  It  will,  therefore, 
not  affect  either  mortgagees,  whose  securities  are  prior  to 
the  suit,  or  the  holders  of  antecedently  acquired  equitable 
interests  in  the  property.^  Nor  will  a  purchaser  of  the  prop- 
erty from  one  who  is  not  a  party  to  the  suit  be  affected. 
Whatever  interest  may  be  acquired  from  an  outside  source 
in  this  manner  will  be  held  unaffected  by  the  suit.- 

§  361.  Prior  Mortgagee  Unaffected. —  An  instance  of  an 
attempt  to  charge  a  previous  mortgagee  with  constructive 
notice  in  this  manner  is  the  case  of  Stuyvesant  v.  Hone.-' 
This  was  where  a  second  mortgagee  asked  the  aid  of  a 
court  of  equity  to  enforce  the  familiar  doctrine  requiring 
the  mortgagee  of  several  tracts  pledged  to  secure  the  same 
indebtedness,  to  proceed  by  foreclosure  against  the  several 
tracts  in  the  inverse  order  of  their  alienation.  The  first 
mortgage  covered  several  tracts,  one  of  which  only  was 
covered  by  the  second.  Pending  a  suit  to  foreclose  the  sec- 
ond mortgage,  of.  which  the  first  mortgagee  had  no  actual 
notice,  a  portion  of  tlie  property  included  in  the  first  mort- 
gage, but  not  in  the  second,  was  released  without  diminish- 
ing the  indebtedness,  theireby  leaving  the  property  to  which 
the  second  mortgagee  was  forced  to  look  for  his  security,  so 
heavily  incumbered  as  to  materially  impair  the  value  of  the 
junior  mortgage.  The  right  of  the  junior  incmnbrancer  to 
the  relief  prayed  for,  depending  upon  notice,  the  court  held 

iSee  BeUamy  v.  Sabine,  1  De  G.  &  J.,  566. 

2 Parsons  v.  Hoyt,  24  Iowa,  154;  Scarlett  v.  Gorharn,  28  111,,  319;  Stuy- 
vesant V.  Hone,  1  Sandf .  Ch. ,  419. 
■^  1  Sandf.  Ch.,  419. 


2u0  I.IS    PENDENS. 

that  the  senior  mortgagee  could  not  be  charged  with  con- 
structive notice  by  reason  of  the  pendency  of  the  suit  for 
foreclosure.' 

§  36'-J.  Foreclosure  of  Prior  Mortgage. —  So,  a  purchaser 
at  a  foreclosure  sale,  where  the  mortgage  was  given  prior 
to  the  institution  of  a  suit  brought  against  the  mortgagor 
with  respect  to  the  mortgaged  property,  was  held  not  to  be 
a  purchaser  ^?(?;^r7dn/d  lite,  within  the  meaning  of  the  rule, 
although  the  decree  of  foreclosure  and  the  sale  were  both 
subsequent  to  the  commencement  of  the  suit.^ 

§303.  Antecedent  Eq[uity. —  Where  one  has  an  equi- 
table interest  in  the  property  prior  to  the  suit,  and  by  reason 
thereof  should  be  made  a  party  defendant,  neither  he  nor 
his  assignee  will  be  affected  with  notice  of  the  suit,  actual 
or  constructive,  unless  he  be  made  a  party,  and  his  interest 
will  only  be  affected  from  the  time  of  his  being  so  brought 
in.* 

§364.  Same. —  The  pendency  of  a  suit  involving  the 
legal  title  to  the  property  will  not  affect  the  holder  of  an 
antecedently  acquired  equity  so  as  to  prevent  his  clothing 
himself  with  the  legal  title.* 

§365.  Holder  of  Equity  May  Acquire  Legal  Title. 
Accordingly  where,  in  the  case  of  Gibler  v.  Trimble,'^  tl::^ 
legal  title  to  the  lands  in  dispute  was  in  the  United  State; 
government,  and  the  com]3lainants,  by  contract  of  purchase, 
entered  into  with  the  legal  holder  of  certain  military  land 
warrants,  acquired  an  interest  against  such  legal  holder,  in 
such  lands,  by  virtue  of  the  location  of  the  land  warrants ; 
but  a  purchaser  had  taken  possession,  paid  the  purchar;:; 
money  and  made  permanent  improvements  upon  the  land, 
by  reason  of  the  contract  of  sale  the  covenantor  became 

iSee,  also,  Stuyvesant  v.  Hall,  3  Barb.  Cli.,  151. 
2  Fen  wick  v,  Macj',  2  B.  Mon.,  469;  Chondi-on  v.  Magee,  8  Ala.,  570. 
3 Parks  V.  Jackson,  11  Wend.,  442. 

•«  Gibler  v.  Ti-imble,  14  Ohio,  323;  Clarkson  v.  Morgan,  6  B.  Mon.,  441 ; 
Fogarty  v.  Sparks,  22  Cal.,  142;  Irvin  v.  Smith,  17  Ohio,  226. 
5  Supra. 


LIS   PENDENS.  201 

bound  to  secure  to  the  covenantee  the  legal  title ;  and  where 
a  suit  was  instituted  against  the  legal  owner  of  the  war- 
rants, to  compel  their  assignment  and  the  conveyance  of 
the  land  to  those  equitably  entitled  thereto,  it  was  held  that 
this  would  not  operate  as  a  lis  pendens  to  prevent  the  pur- 
chaser in  possession  from  perfecting  his  title  by  procuring 
a  patent  from  the  government. 

§366.  Holder  of  Contingent  Right. —  When  a  contin- 
gent right  to  the  property  becomes  vested  by  the  happening 
of  the  contingency,  dming  the  pendency  of  a  suit  involv- 
ing the  title,  he  upon  whom  the  title  devolves  will  not  be 
affected  with  notice  of  the  suit.  As  where,  in  Murray  ^\ 
Blatchford,^  there  was  a  conditional  assignment  of  a  mort- 
gage, and  during  the  pendency  of  a  suit  by  the  assignee  to 
foreclose,  the  condition  was  broken  and  the  mortgage  re- 
vested, the  mortgagee  was  held  not  to  occupy  the  position 
of  a  purchaser  pendente  lite,  and  hence  was  not  bound  by 
the  decree  rendered. 

§  367.  Waiver  by  Plaintiff.— Where  the  sale  by  the  de- 
fendant, pendente  lite,  is  ratified  by  the  plaintiff  who  pre- 
vails in  the  suit,  by  taking  judgment  for  the  proceeds  of 
such  sale,  or  for  the  value  of  the  property  as  for  conversion, 
this  will  be  construed  as  a  waiver  of  his  claim  to  the  thing.- 

§  368.  (jrantor  Must  be  a  Party  at  Time  of  Purchase. — 
If,  at  the  time  of  the  sale,  the  person  from  whom  the  pur- 
chase is  made  has  not  been  made  a  party,  the  lis  pendens  will 
not  affect  the  purchaser,  although  his  grantor  may  subse- 
quently be  brought  in  by  summons,  or  may  voluntarily 
appear ;  for  those  purchasers  only  are  charged  with  notice 
who  purchase  from  parties  to  the  suit.' 

§  369.  Generally  Confined  to  Real  Estate. —  In  apply- 
ing this  doctrine  the  courts  have  generally  manifested  an 

11  Wend.,  583. 

-'  Smith  V.  Brown,  9  Leigh,  293. 

3  French  v.  The  Loyal  Company,  5  Leigh,  627;  Stuyvesant  v.  Hone, 
1  Sandf.  Ch.,  419;  2  Barb.  Ch.,  151;  Parks  v.  Jackson,  11  Wend.,  442; 
Scarlett  v.  Gorham,  28  111.,  319;  Parsons  v.  Hoyt,  34  Iowa,  154. 


202  LIS   PENDENS. 

inclination  to  restrict  its  oiDcration  to  suits  in  which  tho 
title  to  real  property  was  litigated.  In  some  of  the  cases 
this  restriction  is  expressed,  Avhilc  in  others  doubts  seem  to 
be  entertained,  with  a  decided  inclination  to  resolve  them 
by  declaring  against  the  extension  of  this  unfavored  doc- 
trine to  sales  of  personal  chattels.^ 

§370.  Purchaser  of  Securities. —  In  "\Yatlington  v. 
riowley,-  however,  a  purchaser  of  securities,  pendente  lite, 
was  held  to  be  bound  by  the  decree,  to  the  extent  that  he 
might  be  required  to  restore  the  securities  to  the  rightful 
owner,  and  receive  what  he  had  actually  paid  for  them,  re- 
gardless of  Avhat  they  might  be  worth  at  the  time. 

§371.  Same  —  Illustratiou  —  Trusts. —  So  Murray  t'. 
Lylburn^  was  a  case  involving  the  application  of  the 
principles  of  lis  ^xw^^n,9  to  the  assignment  of  a  bond 
and  mortgage,  where  the  securities  were  assigned  by  a 
trustee,  pending  a  suit  by  the  cestui  que  trusts,  hj  biU  in 
equity  against  such  trustee,  for  a  breach  of  trust,  and  to 
take  the  whole  subject  of  the  trust  out  of  his  hands,  to- 
gether with  all  the  papers  and  securities  relating  thereto. 
It  was  lield  by  Chancellor  Kent  that  the  cestui  que  trusts 
could  pursue  the  bond  and  mortgage  in  the  hands  of  the 
assignee,  for  the  reason  that  the  pendency  of  the  suit  against 
the  trustee  by  whom  tlie  assignment  was  made  was  notice 
to  all  the  world.  The  learned  chancellor,  in  rendering  the 
opinion,  says :  "  If  W.  (the  trustee)  had  held  a  number  of 
mortgages  and  other  securities,  in  trust,  when  the  suit  was 
commenced,  it  cannot  be  pretended  that  he  might  safely 
defeat  the  object  of  the  suit,  and  elude  the  justice  of  the 
court,  by  selling  these  securities.  If  he  possessed  cash  as 
the  proceeds  of  the  trust  estate,  or  negotiable  paper  not 

1  Winston  v.  Westfeklt,  22  Ala.,  760;  McLourine  v.  Monroe,  30  Mo., 
462;  Baldwin  v.  Love,  2  J.  J.  Marsh.,  489.  See  Bayer  v.  Cockerill,  3 
Kans.,  282;  Cockrill  v.  Maney,  2  Tenn.  Ch.,  49;  Horn  v.  Jones,  28  Cal., 
194;  Watson  v.  Wilcox,  39  Wis.,  643. 

•2 1  Desau.,  167. 

3  2  Johns.  Ch.,  441. 


LIS   PENDENS.  203 

due,  or  perhaps  movable  personal  property,  such  as  horses, 
cattle,  grain,  etc.,  I  am  not  prepared  to  say  the  rule  is  to 
be  carried  so  far  as  to  affect  such  sales."  ^ 

§  372.  Does  Not  Aflfect  Negotiable  Paper. —  The  above 
declaration  of  this  doctrine  is  sufficiently  indicative  of  the 
kind  of  chattels  which  may  be  affected  by  litigation  with 
respect  thereto  against  the  legal  owner.  The  cases  are 
numerous  in  which  it  has  been  decided  that  negotiable  in- 
struments, by  whatever  form  of  action  it  is  sought  to  sub- 
ject them  to  adverse  claims,  cannot  be  affected  m  the  hands 
of  hona  fide  purchasers  who  acquire  them  before  maturity.- 

§  373.  Peculiar  Kind  of  Property. —  In  exceptional 
cases  decided  with  reference  to  property  of  a  peculiar  kind, 
and  which  was  necessarily  governed  by  pecuhar  laws,  the 
doctrine  has  been  applied ;  ^  but  as  this  species  of  property 
no  longer  exists,  the  principle  governing  such  cases  can 
hardly  be  applied  with  safety  to  sales  of  chattels,  the  pro- 
prietary interest  in  w^hich  does  not  depend  upon  local 
statutes. 

§  374.  Statutory  Provisions. —  In  some  of  the  states  of 
the  Union,  and  in  England,  there  have  been  statutory  pro- 
visions enacted  Avhich  materially  simplify  the  operation  of 
a  lis  pendens ;  for  the  reason  that  in  order  to  affect  a  party 
with  constructive  notice  of  the  pendency  of  a  suit,  tliere 
must  be  a  notice  of  such  suit  filed  with  the  officer  wliose 
duty  it  is  to  register  conveyances  of  real  estate.  These 
statutes  provide  in  substance  that  from  the  time  of  such 

'See,  also,  Sciidder  t'.  Van  Amburgh,  4  Edw,  Ch.,  29;  Diamond  v. 
Lawrence  Co.  Bank,  1  Wright,  353:  Balling r.  Cai-ter,  9  Ala.,  921 ;  Shel- 
ton  V.  Johnson,  4  Sneed,  672;  Leitch  v.  Wells,  48  N.  Y.,  585;  Hoxie  v. 
Carr,  1  Sumn.,  173. 

2 Day  V.  Zimmerman,  68  Pa.  St.,  72;  Goodman  v.  Simonds,  20  How., 
343;  Mines  v.  West,  38  Ga.,  18;  Winston  v.  Westfeldt,  22  Ala.,  760:  Hill 
V.  Kroft,  29  Pa.  St.,  186;  Kellogg  v.  Fancher,  23  Wis.,  21;  Stone  v.  Elli- 
ott, 11  Ohio  St.,  252;  Kieffer  v.  Eliler,  18  Pa.  St.,  388:  Hibernian  Bank 
V.  Everman,  52  Jliss.,  500;  Mayberry  t\  Morris,  63  Ala.,  113. 

'Macey  v.  Fenwick,  9  Dana,  198;  Smith  v.  Brown,  9  Leigh,  293;  Dut- 
ton  V.  Warschauer,  21  Cal.,  609:  Braman  v.  Wilkinson,  3  Barb.,  151; 
Smith  V.  Gibson,  15  Minn.,  89;  Dixon  v.  La  Coste,  1  Sm.  &  Marsh.,  107. 


204  LIS   TEKDENS. 

filing  only  shall  the  pendency  of  the  action  be  constructive 
notice  to  a  purchaser  or  incumbrancer  of  the  property  af- 
fected thereby,  and  hence  are  regarded  as  substitutes  for 
Lord  Bacon's  rule,'  but  not  as  having  the  effect  to  modify 
the  rule  that  one  purchasing  with  actual  notice  of  the  liti- 
gation will  bo  bound  by  the  decree.^  Nor  do  these  statutes 
govern  equitable  proceedings  in  the  federal  courts,  except 
where  they  are  adopted." 

§  37  5.  Purchaser  Not  Affectetl  Personally  —  Effect  of 
Jiidgnient. —  This  rule  being  only  applicable  to  suits  which 
are  in  their  nature  actions  in  rem,  the  judgment  rendered 
will  not  bind  the  purchaser  personally,  but  will  only  affect 
the  property  or  interest  which  is  the  subject  of  litigation. 
The  purchaser  merely  holds  the  title  subject  to  the  judg- 
ment. The  lis  pendens  ends  with  the  final  judgment  in  the 
suit.'* 

§  376.  Statute  Of  Limitations  Does  Not  Run  During 
Suit.— During  the  progress  of  a  suit  involving  the  title  to 
real  estate,  where  the  doctrine  of  lis  pendens  is  applicable, 
the  statute  of  limitations  will  not  run  in  favor  of  the  pur- 
chaser, so  as  to  defeat  the  operation  of  the  rule.^ 

iHaynesv.  Calderwood,  23  Cal.,  409;  Hurlbutt  v.  Butenop,  27  Cal., 
50;  Richardson  v.  White,  18  Cal.,  103;  Bensley  v.  Mountain  Lake  Water 
Co.,  13  id.,  306;  Gregory  v.  Haynes,  id.,  591;  Head  v.  Fordyce,  17  id., 
149;  Ault  V.  Gassaway,  18  id.,  205;  Horn  v.  Jones,  28  id.,  195. 

-Sampson  v.  Ohleyer,  32  Cal.,  200;  Montgomery  v.  Byers,  31  Cal.,  107; 
Grattanu.  Wiggins,  23  Cal.,  16;  Sharp  v.  Lumley,  34  Cal.',  611;  Ferrea 
V.  Chabot,  63  Cal.,  564. 

^Majors  v.  Cowell,  51  Cal.,  478.  See  fiu-ther  as  to  the  construction  of 
the  statutes,  MiUs  v.  BUss,  55  N.  Y.,  139;  Brown  v.  Goodwin,  75  N. 
Y.,  409;  Fullers.  Scribner,  76  N.  Y.,  190;  Sheridan  v.  Andrews,  49  N. 
Y.,  478;  MitcheU  v.  Smith,  53  N.  Y.,  413;  Todd  v.  Outlaw,  79  N.  C,  235; 
Jones  w.  McNarrin,  68  Me.,  334;  Wliite  v.  Perry,  14  W.  Va.,  66;  Tread- 
way  V.  McDonald,  51  la.,  663. 

♦Worsley  v.  Earl  of  Scarborough,  3  Atk.,  392;  Lane  v.  Jackson,  20 
Beav.,  535;  Lee  v.  Green,  6  De  G.,  M.  &  G.,  155;  Proctor  v.  Cooper,  2 
Drew,  1 ;  Churcliill  v.  Grove,  1  Ch.  Cas.,  35;  Lee  Co,  v.  Rogers,  7  Wall., 
181;  Turner  v.  CrebUl,  1  Ohio,  372;  Page  u.  Wai'ing,  76  N.  Y.,  463; 
Wmbornr.  Gorrell,  3  Ired.  Eq.,  117. 

^Henly  v.  Gore,  4  Dana,  133. 


LIS   PENDENS.  205 

§  377.  Purchaser  at  Execution  Sale. —  Those  who  pur- 
chase at  an  execution  sale  will  be  affected  in  the  same  man- 
ner as  purchasers  directly  from  the  defendant,  when  the 
action  upon  which  the  execution  is  based  has  been  com- 
menced subsequent  to  that  in  which  the  title  to  the  property 
is  litigated.' 

1  Turner  u,  Babb,  60  Mo.,  343;  Stoddard  v.  Myers,  8  Ohio,  203;  Scott 
V.  Colman,  5  Monr.,  73;  Pindall  v.  Trevor,  30  Ark.,  249. 


CHAPTER  YII. 

NOTICE  BY  WHICH  CERTAIN  LIABILITIES  ARE  CREATED. 

I.  Notice  of  AccEPTA^x•E  of  Proposals. 
II.  Notice  of  Guaranty, 

III.  Notice  of  Assignment. 

IV.  Notice  to  Carriers  and  Other  Bailees. 

V.  Notice  of  Suit  in  Ejectment,  to  Warrantor. 
VI.  Notice  by  Which  Liability  for  Tort  May  be  Fixed, 
VII.  Notice  by  Which  Certain  Contract  Liabilities  May  be  Fixed. 


I.  Notice  of  Acceptance  of  Peoposals. 

§  378.  Continuing  and  Limited  Offers. 

379.  Necessity  of  Notice. 

380.  Time. 

381.  Offer  by  Auctioneer. 

382.  Notice  May  be  Oral  or  Written. 

383.  By  Mail. 

384.  Continuing  Until  Accepted,  Rejected  or  Withdra^vn. 

385.  Withdrawal  by  Mail, 

§  378.  Contiinnng   and   Limited   Offer. —  One  of  the 

necessary  ingredients  of  every  contract,  and  the  one  which 
is  first  in  point  of  time,  is  the  proposal  or  offer  made  by  the 
one  party  to  the  other.  And  when  such  offer  is  made  with- 
out express  limitation  as  to  the  time  of  its  acceptance,  it 
will  be  regarded  as  a  continuing  offer  for  a  reasonable  time, 
or  until  accepted  or  withdrawn.  When  accepted,  it  ceases 
to  be  an  offer,  because  it  has  then  ripened  into  a  contract. 
When  withdrawn,  the  matter  in  negotiation  is  at  an  end.^ 
When  the  time  for  acceptance  is  expressly  limited  by  the 
proposer,  which  it  is  always  within  his  power  to  do,  the 
proposal  falls  to  the  ground  at  the  expiration  of  that  time, 
unless  sooner  accepted  or  withdrawn.^ 

1 1  Pars,  on  Cont.,  403,  and  cases  cited;  B,  &  M.  L,  R,  Co.  v.  Unity,  62 
Me.,  148;  Burton  v.  Shotwell  (Ky.),  6  Cent.  L.  J,,  31. 
21  Pars,  on  Cont.,  405. 


NOTICE  OF  ACCEPTANCE  OF  PKOPOSALS.         207 

§  379.  Necessity  of  Notice. — -It  is  not  sufBcient,  to  con- 
stitute a  binding  contract  between  the  parties,  that  one  of 
them  makes  a  proposal  which  is  communicated  to  the  other, 
and  that  other  secretly  resolves  in  his  own  mind  tliat  he  will 
accept  the  offer  made;  nor  is  it  even  sufficient  that  he 
openly  declares  his  acceptance,  unless  that  fact  be  communi- 
cated by  him  to  the  party  making  the  proposal.  In  other 
words,  there  must  be  notice  of  the  acceptance  from  the  ac- 
cepter to  the  proposer.' 

§  380.  Time. —  The  time  within  which  such  notice  must  be 
given,  in  order  to  create  a  liability  against  the  proposer,  will 
largely  depend  upon  the  subject-matter  of  the  contract,  and 
the  conduct  of  the  parties  to  the  negotiation.  Of  course, 
if  the  offer  be  rejected,  a  subsequent  notice  of  acceptance 
would  be  of  no  avail.'  It  has  even  been  laid  down  by  very 
high  authority,  as  the  general  doctrine  upon  this  subject, 
that  if  the  party  to  whom  the  offer  is  addi'essed  "goes 
away,  and  returns  the  next  month,  or  the  next  week,  and 
says  he  will  accept  the  proposition,  he  is  too  late  unless  the 
proposer  assents  in  his  turn.  So  it  would  be,  probably,  if 
he  came  the  next  day,  or  the  next  hour;  or,  perhaps,  if  he 
went  away  at  all  and  afterwards  returned."  ^ 

§381.  Offer  by  Auctioneer. —  Where  goods  are  offered 
for  sale  at  auction,  a  bidder  is  regarded  as  making  an  offer 
or  proposal  to  purchase  at  the  price  mentioned  in  his  bid. 
The  offer  to  be  binding  upon  him  must  be  accepted  before 
he  withdraws  it,  for  until  accepted  it  is  of  no  force.  When, 
however,  another  bid  is  made,  and  cried  by  the  auctioneer, 
this  may  be  regarded  by  the  first  bidder  as  an  unequivocal 
rejection  of  his  proposal,  which  cannot  again  become  tlie 
subject  of  acceptance  unless  the  latter  bid  be  withdrawn 
and  the  former  is  renewed.^ 

§  382.  Notice  May  Tbe  Oral  or  Written. —  Unless  the  offer 
stipulates  for  notice  of  acceptance  in  writing,  such  notice 

1  Benjamin  on  Sales,  §  39  et  seq. 

21  Pars.  onCont.,  404. 

»  Payne  v.  Cave,  3  T.  R.,  148. 


208  NOTICE    BY    WHICH    LIABILITIES    ARE    CREATED. 

may  be  given  in  any  manner  in  which  information  may  be 
communicated.  It  may  be  given  either  orally  or  in  writing ; 
and  when  by  the  latter  mode,  may  be  dispatched  by  a  pri- 
vate messenger,  by  the  post,  or  may  be  by  telegraph.' 

§  383.  By  Mail. —  "When  the  negotiations  are  carried  on 
between  the  parties  by  mail,  unless  otherwise  stipulated  by 
the  proposer,  the  contract  will  be  complete  from  the  date  of 
depositing  the  notice  of  acceptance  in  the  postoffice ;  not- 
withstanding during  the  time  intervening  betw^een  the  post- 
ing of  the  notice,  and  its  receipt  by  the  one  who  makes  the 
offer,  the  latter  may  have  concluded  to  Avithdraw  the  prop- 
osition.2  As  in  the  case  cited,  a  purchaser  offered  a  certain 
price  for  an  estate,  which  the  vendor  accepted  by  post.  The 
letter  announcing  the  vendor's  acceptance  of  the  proposal 
was  received  by  the  party  making  it  the  day  after  it  was 
sent.  Here  it  was  held  that  the  vendor  was  bound  by  the 
contract  from  the  time  of  posting  his  letter  of  acceptance, 
for  the  reason  that  the  notice  intended  to  announce  to  the 
purchaser  the  concurrence  on  the  part  of  the  vendor  had 
gone  beyond  his  recall.^ 

§  384.  Continuing  Until  Accepted,  Rejected  or  With- 
drawn.—  It  has  been  held  otherwise  in  this  country  in  sev- 
eral instances,*  but  the  w^eight  of  authority  in  the  United 
States  as  w^ell  as  in  England  is  decidedly  in  favor  of  the 
rule  announced  above.  It  seems  also  to  be  the  only  position 
on  the  question  that  is  tenable,  upon  principles  of  sound 
reason.  The  offer  must  be  regarded  as  continuing  until 
accepted,  rejected  or  withdrawn.     So  long  as  it  continues  it 

1  Deshon  v.  Fosdick,  1  Woods,  286 ;  Schonberg  v.  Cheny,  6  Thomp.  & 
C.  (N.  Y.),  200;  S.  C,  3  Hun,  677. 

2  Potter  V.  Sanders,  6  Hare,  1. 

3  See,  also,  Brisban  v.  Boyd,  4  Paige,  17;  Averill  v.  Hedge,  13  Conn., 
424;  Mactierv.  Frith,  6  Wend.,  103;  Levy  u.  Cohen,  4  Ga.,  1;  Childs  v. 
Nelson,  7  Dana,  281;  Hamilton  v.  Lycoming  Mut.  Ins.  Co.,  5  Pa.  St., 
339;  Dunlop  v.  Higgins,  1  H.  L.  Cas.,  381;  Story  on  Sales,  §§  129,  130, 
and  cases  cited. 

■•McCulloch  V.  Eagle  Ins.  Co.,  1  Pick,,  278;  Gillespie  v.  Edmonston,  11 
Humph,,  553, 


NOTICE  OF  ACCEPTANCE  OF  PROPOSALS.         209 

is  at  the  disposal  of  the  party  to  whom  it  is  made.  AYhen  he 
has  written  and  posted  an  answer  to  the  proposal,  notifying 
the  other  party  that  he  accepts,  he  has  done  all  that  lies  in 
his  power  to  perfect  the  contract  and  render  it  binding  u^on 
himself,  and  in  doing  so  has  rendered  it  equally  binding 
upon  the  author  of  the  proposal. 

§  385.  Withdrawal  hj  Mail. —  Professor  Parsons,  in  his 
very  able  work  on  contracts,  lays  down  the  rule  that  the 
offer  may  be  withdrawn  by  the  maker  at  any  moment ;  but 
he  qualifies  this  somewhat  by  adding  that  such  offer  is  with- 
drawn as  soon  as  notice  of  such  withdrawal  reaches  the 
party  to  whom  it  is  made,  and  not  before.^  This  Avould 
place  the  proposer  in  a  position  at  a  disadvantage  compared 
to  the  status  of  the  other  party.  If  the  acceptance  is 
completed  by  the  deposit  of  the  notice  in  the  postoifice, 
why  may  not  the  proposition  be  considered  withdrawn  from 
the  date  of  posting  notice  of  such  withdrawal  rather  than 
from  the  date  of  its  receipt  by  the  party  to  whom  it  is  ad- 
dressed ?  It  is  true  that  the  notice  of  withdrawal  might  be 
posted  subsequent  to  the  posting  of  the  acceptance.  In  such 
an  event  there  could  be  no  doubt  that  the  attempt  to  with- 
draw the  proposition  was  made  too  late  to  take  effect.- 
Where,  however,  the  notice  of  withdrawal  is  first  posted, 
the  same  reasoning  applied  to  the  notice  of  acceptance  "^nill 
apply  with  equal  force  to  the  notice  intended  to  put  an  end 
to  negotiations  by  retracting  the  proposal. 

»lPars.  onCont.,  483. 
-  Hutcheson  v.  Blakeman,  3  Met.  (Ky.),  80. 
14 


210  KOTICE    BY    WHICH    LIABILITIES   AKE    CREATED. 


II.    l^OTICE    OF    GUARANTT. 

386.  Different  Foniis  of  Collateral  Liability. 

387.  Division  of  Subject. 

388.  Conflicting  Decisions. 

389.  Early  Authorities. 

890.  Guarantor  Entitled  to  Notice  of  Acceptance  — Absolute  Guaranty. 

391.  Proposal  to  Guaranty. 

392.  Letter  of  Credit  Held  to  be  Proposal. 

393.  Eeason  for  Notice  of  Pi-oposed  Guaranty. 

394.  Absolute  Guaranty,  Notice  Not  Required. 

395.  Distinction  Between  Different  Kinds  of  Guaranties, 

396.  Uncertainty  of  Amount. 

297.  General  Indefinite  Letter  of  Credit. 

398.  Definiteness  of  Amount. 

399.  Guaranty  of  Proposed  Credit. 

400.  Absolute  Guaranty  of  Uncertain  Amount. 

401.  Notice  of  Acceptance  Held  Unnecessary. 

402.  Continuing  Absolute  Guaranty. 

403.  Principles  Regarded  as  Settled. 

404.  Weight  of  Authority. 

405.  Rule  as  to  Indefinite  Letters  of  Credit. 

406.  Time  of  Gi\'ing  Notice  of  Acceptance. 

407.  Notice  of  Action  on  Guai-anty. 

408.  Change  of  Manner  of  Reimbursement. 

409.  Report  of  Particular  Ti-ansactions  Not  Generally  Required. 

410.  Notice  of  State  of  Accounts  on  Demand. 

411.  Notice  of  Principal's  Failure. 

412.  Conflict  of  Authority. 

413.  Early  Massachusetts  Aiithorities. 

414.  Demand  and  Notice  Held  Necessary. 

415.  Later  Authority  —  Contra  to  Above. 

416.  Indiana  Authorities. 

417.  Negligence  of  Guarantee. 

418.  Rule  in  Connecticut  —  Absolute  Guaranty. 

419.  Uncertainty  of  Amounts. 

420.  Means  of  Knowledge  Within  Reach  of  Guarantor. 

421.  Pennsylvania  Doctrine. 

422.  Guaranty  and  Suretysliip. 

423.  Deductions  from  Authorities. 

424.  Obligation,  Unlimited  and  Uncertain. 

425.  Notice  Not  as  of  Dishonor  of  Commercial  Paper. 

426.  Notice  Excused  —  Reasonable  Time. 

427.  Waiver  of  Notice. 


NOTICE   OF   GUAEANTY.  211 

§386.  DiflFerent  Forms  of  Collateral  Liability.— The 

doctrine  of  notice,  as  it  affects  the  liability  of  parties  collat- 
erally liable,  except  with  reference  to  indorsers  of  nego- 
tiable paper,  which  is  treated  elsewhere,'  will  be  here 
considered  without  regard  to  the  manner  in  which  such  lia- 
bility is  denominated  in  the  contract  by  which  it  is  created. 
It  may  be  by  an  agreement  in  terms  to  "  guarantee  "  the  per- 
formance of  the  obligation  assumed  by  the  party  originally 
liable  as  principal,  or  it  may  be  to  "  secure"  -  such  perform- 
ance ;  or  the  form  of  expression  used  may  be  an  agreement 
to  be  "accountable"  or  "responsible"  for  pajnnent  of  a 
sum  of  money  due  or  to  become  due  in  the  future.^  The 
undertaking  may  be  indorsed  upon  the  contract  of  the  prin- 
cipal,* it  ma}^  be  by  a  separate  writing  executed  by  the 
guarantor,  reciting  the  obligation  assumed  by  the  principal, 
which  it  is  proposed  to  guarantee,  in  specific  terms,^  or  the 
obligation  may  be  assumed  by  a  letter  of  credit,  general  or 
special,''  and  the  application  of  the  rule  will  be  the  same  in 
cases  belonging  to  either  class,  where  the  obligations  as- 
sumed are  the  same  in  substance.'' 

§  887.  Division  of  Subject. —  This  branch  of  the  subject 
will  be  of  threefold  consideration.  First,  with  reference 
to  notice  of  the  acceptance  of  the  guaranty ;  second,  notice 
of  the  action  taken  upon  the  faith  of  the  guaranty ;  and 
third,  when  and  under  what  circumstances  notice  of  the 
principal's  failure  to  perform  is  necessary  in  order  to  fix  the 
liability  of  the  guarantor. 

§  388.  Conflicting  Decisions. —  The  doctrine  that  guar- 
antors are   entitled   to   notice   of  the  acceptance   of  the 

1  Post,  ch.  X. 

2Ti-ue  V.  Harding,  12  Me.,  193. 

3  Norton  v.  Eastman,  4  Me.,  521 ;  Train  v.  Jones,  11  Vt.,  444. 

4  Taylor  v.  Ross,  3  Yerg.,  330. 

5  Smith  u.  Ide,  3  Vt.,290. 

6  Russell  V.  Clark,  7  Cranch,  69. 

"  But  there  is  an  essential  difference  between  the  liability  of  a  guar- 
antor and  that  of  a  surety.  Ashton  v.  Bayard,  71  Pa.  St.,  139;  Krampli 
V.  Hatz,  53  Pa.  St.,  525. 


212  NOTICE    BY    WHICH    LIABILITIES   ARE    CREATED. 

guaranty,  when  the  obligation  assumed  is  absolute  in  its 
terms,  has  been  unequivocally  asserted  in  comparatively 
few  cases  in  this  country,  and  is  said  to  be  utterly  repudi- 
ated in  England.^  It  is,  however,  probably  the  prevailing 
rule  in  the  state  of  Massachusetts,-  while  in  New  York  it  is 
strenuously  denied.'  As  betw^een  these  two  great  states, 
from  which  we  receive  so  large  a  part  of  our  commercial 
law,  the  latter  seems  to  have  by  far  the  largest  following 
upon  this  question  by  the  other  states  of  the  Union.* 

§389.  Early  Authorities.— The  first  decision  bearing 
upon  this  question  by  high  authority  in  this  country  was 
in  the  case  of  Kussell  v.  Clark,*  where  Chief  Justice  Mar- 
shall expressed  the  opinion  that  the  guarantor  could  not 
be  held  upon  the  collateral  undertaking,  even  in  case  it 
amounted  to  a  contract,  absolute  in  its  terms,  without  no- 
tice of  acceptance.  This  was  followed  by  the  case  of  Cremer 
V.  Higginson,''  in  which  it  is  laid  down  by  Judge  Story 
that  where  cash  advances  were  made  on  the  strength  of  a 
guaranty,  hmited  to  a  specific  amount,  it  was  the  duty  of 
the  party  making  the  advances  to  notify  the  guarantor  of 
that  fact,  and  that  reliance  was  placed  upon  the  guaranty 
to  insure  repayment,  and  if  such  notice  was  not  given  in 
a  reasonable  time  the  guarantor  would  be  discharged. 

§390.  Guarautor  Entitled  to  Notice  of  Acceptance  — 
Absolute  Guaranty. —  So,  w^here  the  contract  of  the  prin- 
cipal was  to  pay  a  specific  sum  in  three  years,  and  the  con- 
tract of  guaranty  was  in  the  following  language:  "I  will 
willingly  hold  myself  responsible  to  you  for  the  above 
amount  provided  T.  (the  principal)  should  fail  to  pay  at  the 

1  Cowen,  J.,  in  Douglass  v.  Rowland,  24  Wend.,  35. 

2  AUen  V.  Pike,  3  Cush.,  238;  Musseyv.  R{?,yner,  22  Pick.,  223;  Talbot 
V.  Gay,  18  Pick.,  534. 

3  See  New  York  cases  cited  infra. 
*  Cases  cited  infra. 

6  7Cranch,  69. 

61  Mason,  323.  See,  also,  Eussell  v.  Perkins,  id.,  368;  Rapelye  v. 
Bailey,  3  Conn.,  428;  Clark  v.  Remington,  11  Met.  (Mass.),  361 ;  Babcock 
V.  Bryant,  12  Pick.,  133. 


NOTICE   OF   GUARANTY.  213 

end  of  said  term  of  three  years,"  it  was  held  that  the  guar- 
antor was  entitled  to  notice  of  the  acceptance  and  of  the 
advances  made  in  rehance  upon  the  guaranty,  and  where 
such  notice  was  not  given,  the  guarantor  could  not  be  held 
liable  on  the  contract.^ 

§391.  Proposal  to  Guarantee. —  Where  the  contract 
upon  which  it  is  sought  to  hold  the  party  liable  amounts 
simply  to  a  proposal  to  guarantee  the  faithful  performance 
of  the  principal  obligation,  and  depends  upon  the  consent 
of  the  other  party  to  the  extension  of  the  credit  to  the 
principal  obUgor,  there  seems  to  be  no  disagreement  be- 
tween the  authorities,  American  or  English,  as  to  the  right 
of  the  guarantor  to  consider  the  contract  as  incomplete 
until  accepted  by  the  other  party,  of  which  acceptance  he 
is  entitled  to  notice;-  although  there  may  be  some  con- 
flict between  them  as  to  what  amounts  to  an  absolute  guar- 
anty, and  what  is  simply  an  offer  to  guarantee.* 

§392.  Letter  of  Credit  Held  to  be  Proposal.— The 
following  is  an  example  of  a  letter  of  credit  which  was 
treated  as  a  mere  proposal  to  enter  into  such  a  collateral 
engagement,  for  the  reason  that  it  was  a  continuing  guar- 
anty; but  elsewhere  similar  undertakings  have  been  re- 
garded as  absolute  contracts :  "  Messrs.  R.  B.  &  Co. —  Our 
friend,  Mr.  C.  H.,  to  assist  him  in  business,  may  require 
your  aid,  from  time  to  time,  either  by  acceptance  or  in- 
dorsement of  his  paper,  or  advances  in  cash.  In  order  to 
save  you  from  harm  by  so  doing,  we  do  hereby  bind  our- 

1  Craft  u.  Isham,  13  Conn.,  28.  See,  also,  Lowe  v.  Beckwith,  14  B. 
Mon.,  187;  Howe  v.  Nickels,  23  Me.,  175;  Hill  v.  Calvin,  4  How.  (]\Iiss.), 
231;  Beebe  v.  Dudley,  26  N.  H.,  249;  Dunbar  v.  Brown,  4  McLean,  166; 
Mayfield  v.  Wheeler,  37  Tex.,  256. 

2 Norton?;.  Eastman,  4  Me.,  522;  infra,  393,  cases  cited,  note  2;  Kel- 
logg V.  Stockton,  29  Pa.  St.,  460;  Unangst  v.  Hibler,  26  Pa.  St.,  150; 
Dixon  V.  Frazer,  1  E.  D.  Smith,  32.  The  rule  as  laid  down  in  Alabama 
is  that  the  guarantor  is  entitled  to  notice  unless  the  guarantor  and  cred- 
itor reside  in  the  same  city,  and  the  agreement  to  accept  is  contempora/- 
neous  with  the  offer  to  guarantee.     Cahuzac  v.  Samini,  29  Ala.,  288. 

3Bh-dsall  V.  Heacock  (Sup.  Ct.  Com.  O.),  18  Am.  L.  Rec,  751;  Beek- 
man  v.  Hale,  17  Johns.,  134. 


214  NOTICE   BY   WHICH    LIABILITIES   AKE   CEB.^.TED. 

selves,  severally  and  jointly,  to  be  responsible  to  you,  at 
any  time,  for  a  sum  not  exceeding  $8,000,  should  the  said 
C.  H.  fail  to  do  so."  It  was  accordingly  held  that  the  party 
to  whom  it  was  addressed,  in  order  to  bind  the  guarantor, 
should  have  given  him  notice  of  the  acceptance  of  the 
guaranty.^ 

§  393.  Reason  for  Notice  of  Proposed  Guaranty. —  This 
doctrine  is  not  only  supported  by  the  almost  unanimous 
concurrence  of  the  authorities,  wherever  the  question  has 
been  raised  in  connection  with  a  case  admitted  to  be  a  mere 
proposal  to  guarantee,-  but  it  is  based  upon  the  familiar 
principle  governing  all  contracts,  that  an  undertaking,  to 
become  binding,  requires  the  simultaneous  concurrence  of 
the  minds  of  both  contracting  parties ;  and  where  there  has 
been  an  offer  or  proposal  on  the  one  side,  it  is  pending  until 
accepted  or  rejected,  and  notice  given  of  such  acceptance 
or  rejection  by  the  one  party,  or  is  withdrawn  by  the  other.^ 

§  394.  Absolute  Guaranty,  Notice  Not  Required. — 
Where  the  distinction  is  observed  between  such  contracts  of 
guaranty  as  are  absolute  and  complete  in  their  terms,  and 
such  as  are  conditional  and  incomplete,  notice  of  the  assent 
of  the  party  who  acts  upon  the  faith  of  the  former  will 
not  be  required.  Thus  an  indorsement  which  recited  that : 
"  For  value  received,  I  sell,  assign  and  guarantee  the  pay- 
ment of  the  within  note  to  J.  A.  or  bearer,"  was  held  an 
absolute  undertaking  that  the  maker  would  pay  when  due, 
or  that  the  guarantor  would  pay,  and  that  therefore  he  was 
not  entitled  to  notice,  as  in  case  of  a  conditional  promise.* 

1  Douglas  V.  Reynolds,  7  Pet.,  113;  Kay  v.  AUen,  9  Pa.  St.,  320. 

2 Stafford  v.  Low,  16  Johns.,  67,  where  the  party  expressed  a  willing- 
ness to  guarantee  if  required ;  Birks  v.  Trippet,  1  Saund.,  32,  where  notice 
was  made  a  condition  of  the  guaranty ;  also  Beekman  v.  Hale,  17  Johns., 
134;  M'lver  v.  Richardson,  1  Maule  &  Selw.,  557. 

^Ante,  I,  Acceptance  of  Proposals. 

*  Allen  V.  Rightmere,  20  Johns.,  365;  Bleeker  v.  Hyde,  3  McLean,  379; 
Breed  v.  Hillhouse,  7  Conn.,  523;  Foster  v.  Barney,  3  Vt.,  60;  Train  t?. 
Jones,  11  Vt.,  444;  Russell  v.  Buck,  id.,  166;  Penny  v.  Crane  Bros. 
Manuf.  Co.,  80  lU.,  244;  Thompson  v.  Glover  (Ky.),  16  Cent.  L.  J.,  16; 
8  Rep.,  589. 


NOTICE    OF   GUAKiLNTY.  215 

§  395.  Distinction  Between  Dififerent  Kinds  of  Guaran- 
ties.—  In  some  of  the  cases  where  the  distinction  is  care- 
fully observed  between  different  kinds  of  guaranties,  the 
line  of  demarcation  isdi'awn  between  such  as  are  mere  pro- 
posals to  guarantee  upon  conditions  therein  expressed,  and 
others  where  the  guarantor  expressly  binds  himself  by  a 
declaration  that  he  does  guarantee  at  the  time.^  Other 
cases  distinguish  between  contracts  which  are  specific  in 
amount  and  definite  as  to  time,  or  onaranteeino:  an  existino- 
demand,  and  such  as  are  for  an  uncertain  amount,  indefinite 
as  to  time,  or  collateral  to  a  prospective  indebtedness.'' 

§  396.  Uncertainty  of  Demand. —  The  latter  distinction 
is  clearly  laid  down  in  a  case  where,  after  stating  that  the 
principals  desired  to  draw  the  letter  of  credit,  says :  "  You 
will  please  accept  their  draft  for  $2,000,  and  I  do  hereby 
guarantee  the  punctual  payment  of  it."  On  the  same  paper 
was  a  letter  addressed  to  the  princij^als,  authorizing  them 
to  use  the  letter  if  they  desired.  While  holding  that  this 
was  such  a  letter  of  credit  as  would  fairly  entitle  the  party 
collaterally  liable  thereon  to  notice  of  acceptance  from  the 
party  to  whom  it  is  addressed,  it  was  admitted  that  where 
the  contract  was  made  guaranteeing  a  specific,  existing 
demand,  as  a  note  already  made,  notice  of  acceptance  of 
the  guaranty  would  not  be  necessary.^ 

§397.  General  Indelinite  Letter  of  Credit. —  Another 
example  where  the  contract  was  positive  in  its  terms  is  the 
case  of  Lawson  v.  Townes.^  Here  the  letter  of  credit  was 
of  the  most  general  and  indefinite  character,  being  ad- 
dressed to  "whom  it  may  concern;"  with  no  hmitation 
either  as  to  amount  or  time.  It  was  held  that  the  guarantor 
could  not  be  held  liable  to  one  making  advances  or  extend- 

lEankin  v.  Cliilds,  9  Mo.,  673;  Smith  v.  Anthony,  5  Mo.,  504;  Davis 
Sewing  Mach.  Co.  v.  Jones,  61  id. ,  409 ;  Douglas  v,  Howland,  24  Wend.,  35. 

2 Leer.  Dick,  10  Pet.,  483;  Wildes  v.  Savage,  1  Story,  23;  Walker  v. 
Forbes,  25  Ala.,  139. 

3 Leer.  Dick,  10  Pet.,  483;  citing  with  approval,  14  Johns.,  349;  and 
Allen  V.  Rightmere,  20  id.,  365.     See,  also,  Taylor  v.  Ross,  3  Yerg.,  330. 

4  2  Ala.,  373.    See,  also,  Mussey  v.  Rayner,  32  Pick.,  223. 


216  NOTICE    BY    WUICU    LIABILITIES    AKE   CREATED. 

ing  credit  on  the  faith  of  the  document,  without  fkst  giying . 
notice  of  his  acceptance  and  intention  to  act  on  its  terms. 
The  binding  portion  of  the  instrument  could  not  be  con- 
strued into  a  mere  conditional  proposal  to  guarantee ;  for  it 
expresses  a  present  undertaking  to  answer  for  the  principal's 
default.  So  that  the  only  ground  upon  which  the  guaran- 
tor's liability  could  have  been  held  subject  to  the  giving  of 
notice  of  acceptance  was  the  uncertainties  hereinbefore 
adverted  to.' 

§  398.  Definiteiiess  of  Amount. —  A  subsequent  decision 
by  the  same  court,  where  the  question  was  raised,  renders 
it  quite  clear  that  definiteness  is  the  point  upon  which  the 
rio'ht  of  a  guarantor  to  notice  would  in  their  estimation  be 
made  to  turn.^  There  it  was  held  that  where  the  guaranty 
is  absolute  in  its  terms,  and  for  the  payment  of  a  definite, 
specific  demand,  there  was  no  sound  reason  why  notice  of 
acceptance  should  be  required  to  be  given  to  the  guarantor 
to  perfect  his  liabilit}^  And  Judge  Goldthwaite  in  deliv- 
ering the  opinion  of  the  court  declares  that  the  English 
cases,  and  the  current  of  American  authorities,  are  in  oppo- 
sition to  the  rule  requiring  notice  in  such  cases. 

§  399.  Guaranty  of  Proposed  Credit. —  Where  the  party 
originally  liable  on  a  contract  for  the  purchase  of  lumber 
to  be  used  in  building  a  boat,  as  principal,  upon  failure  to 
obtain  credit  to  the  amount  of  his  contemplated  purchase, 
applied  to  another  to  assist  him  in  obtaining  such  credit, 
and  made  out  a  bill  of  the  lumber  he  desired  to  purchase, 
adding  at  the  foot  a  request  to  the  lumber  dealer  to  furnish 
the  quantity  stated  in  the  bill,  to  which  was  subjoined  the 
guaranty  in  these  words :  "I  hereby  guarantee  the  paj^ment 
of  the  above  bill," —  this  was  held  to  be  such  a  contract  as 
would  require  the  giving  of  notice  of  acceptance  before 
any  liability  would  accrue  against  the  guarantor.^    In  so 

1  Supra.     See,  also,  'Walker  v.  Forbes,  25  Ala.,  139. 
2 Donley  v.  Camp,  22  Ala.,  659. 

3 Rankin  v.  Childs,  9  Mo.,  673.  See,  also,  Smith  v.  Anthony,  5  Mo.,  504; 
Dobbin  v.  Bradley,  17  Wend.,  433. 


NOTICE   OF   GUARANTY.  217 

holding  the  learned  judge  delivering  the  opinion  dwelt  with 
emphasis  upon  the  fact  that  the  obligation  incurred  was  for 
an  uncertain  amount,  and  attached  to  a  transaction  to  take 
place  in  the  futm'e.  He  distinguished  the  case  from  those 
holding  the  guarantor  liable  where  notice  of  acceptance 
was  neither  given  nor  required,  principally  on  this  ground. 
In  a  later  case  by  the  same  court,  the  alleged  contract  of 
guaranty  was  embodied  in  a  letter  requesting  the  party  to 
whom  it  was  addressed  to  advance  a  sum  therein  specified, 
and  stating  that  unless  the  request  was  acceded  to,  he  would 
feel  obliged  to  assist  the  parties  for  whose  benefit  the  col- 
lateral undertaking  was  proposed,  to  procure  it  elsewhere. 
This  was  held  to  be  a  mere  proposal  to  guarantee,  which 
was  incomplete  until  notice  of  its  acceptance  was  received.* 
§  400.  Absolute  Guaranty  of  Uncertain  Amount. —  In 
the  foregoing  cases  decided  by  the  supreme  court  of- Mis- 
souri, the  uncertainty  of  the  amount  is  considered,  and 
appears  to  have  had  no  little  weight  with  the  com-t ;  but  in 
the  latest  case  to  be  found  where  the  question  has  been 
decided  by  this  court,  the  contract  was  held  to  bind  the 
guarantor,  notwithstanding  notice  of  acceptance  was  not 
given.-  The  terms  of  the  guaranty  were  in  substance  that, 
for  value  received,  the  party  undertook  to  guarantee  to  the 
plaintiff  the  performance  of  a  contract  previously  entered 
into  between  said  plaintiff  and  one  H.  After  referring 
directly  to  the  contract  between  their  principal  and  the 
plaintiff,  as  containing  an  enumeration  of  the  acts,  the  faith- 
ful performance  of  which  they  guaranteed,  it  was  further 
specified  that  they  guaranteed  "  the  payment  by  said  H,  of 
all  indebtedness,  by  account,  note,  indorsement  of  notes  or 
otherwise,  which  may  arise  under  this  contract,  *  *  * 
to  the  amount  of  $600."  Here,  it  is  true,  the  liability  was 
limited  by  the  amount  expressed  in  the  writing,  but  the  case 
was  decided  upon  the  ground  that,  "  where  a  party  du'ectly 

1  Central  Savings  Bank  v.  Shine,  48  Mo.,  456. 
2 Davis  Sewing  Mach.  Co.  v.  Jones,  61  Mo.,  409. 


218  NOTICE   BY    WHICH    LIABILITIES    ARE    CREATED. 

binds  himself  to  be  responsible  for  the  fulfillment  of  anoth- 
er's contract  already  made,  no  such  notice  can  be  necessary," 
§  401.  Notice  of  Acceptance  Held  Unnecessary. —  The 

cases  already  cited  where  absolute  contracts  of  guaranty 
were  held  to  depend  upon  notice  of  acceptance,  merely 
because  the  obligation  incurred  was  collateral,^  are  reviewed 
at  length  and  criticised  by  Judge  Cowen  in  Douglass  v. 
Howland.-  It  is  there  laid  down  that  where  one  party 
agrees  to  account  and  pa}?"  over  such  sums  as  shall  be  found 
to  be  owing  b}''  him,  and  a  third  party  guarantees  that  the 
party  thus  agreeing  shall  perform  his  agreement,  an  action 
will  lie  against  such  guarantor  in  case  of  the  principal's 
failure  to  pay,  without  notice  from  the  creditor  of  his  ac- 
ceptance of  such  guaranty. 

§  402.  Contimiing  Absolute  Guaranty . —  So,  where  a 
bond  was  delivered,  conditioned  that  it  should  be  void  in 
case  the  principal  should  pay  all  notes  made  by  him  in  favor 
of  the  party  taking  the  bond,  to  a  certain  amount  therein 
mentioned,  otherwise  to  remain  in  full  force  and  effect  for 
a  term  of  years  therein  specified,  this  was  held  to  be  a  con- 
tinuing guaranty.  It  was  delivered  by  defendants,  at  the 
same  time  it  was  accepted  by  plaintiff ;  was  an  original  col- 
lateral agreement,  absolute  in  its  terms,  and  definite  both  as 
to  time  and  amount,  and  was  therefore  complete  upon  its 
delivery  without  notice  of  its  acceptance  being  given  to  the 
guarantor.*    A  guaranty  may  be  continuing  within  a  hmited 

1  Russell  V.  Clark,  Cremer  v.  Hlgglnson,  Russell  v.  Perkins,  Rapelye  v. 
Bailey,  and  Babcock  v.  Bryant,  supra,  %  389. 

2  24  Wend.,  35;  Smith  V.  Ide,  3  Vt.,  290;  Yancey  v.  Brown,  3  Sneed, 
89;  New  Haven  Co.  Bank  v.  Mitchell,  15  Conn.,  206;  True  v.  Harding, 
12  Me.,  193.  See,  also,  Holbrow  v.  Wilkins,  1  Barn.  &  Cres.,  10;  Wildes 
V.  Savage,  1  Story,  22. 

3  Farmers'  &  Mechanics'  Ba*ik  v.  Kircheval,  2  Slich.,  504;  Ti-aiu  v. 
Jones,  11  Vt.,  444.  So  where  the  guaranty  expressed  a  nominal  consid- 
eration, was  by  its  terms  to  be  a  continuing  guaranty  until  counter- 
manded, with  but  Umitation  as  to  time  or  amount,  notice  of  acceptance 
was  held  unnecessary.  March  v.  Putney,  56  N.  H. ,  34.  A  guaranty  in 
the  following  words :     "  We  consider good  for  aU  he  may  want 


NOTICE   OF   GTJAEANTT.  219 

amount.  And  when  so  expressed  as  to  bear  that  construc- 
tion will  be  enforced,  though  the  full  amount  of  the  credit 
is  not  given  at  once.^  But  notice  of  acceptance  is  held 
necessary.^ 

§  403.  Principles  Regarded  as  Settled.— Any  attempt 
at  reconciliation  of  the  authorities  upon  this  question  must 
prove  vain.  It  would  be  equally  fruitless  to  undertake  to 
deduce  from  the  authorities  cited  a  uniform  rule,  without 
entirely  discarding  some  of  the  opinions  expressed  upon 
mature  deliberation,  by  judges  distinguished  for  their  learn- 
ing and  research.  Some  features  of  the  question,  however, 
may  be  safely  regarded  as  settled  beyond  question.  It  can- 
not be  doubted  that  a  mere  proposal  to  guarantee  creates 
no  HabiUty  imtil  the  proposal  is  accepted.^  It  may  further 
be  rehed  upon  if  the  contract  is  entered  into  with  reference 
to  an  existing  demand,  and  is  executed  and  dehvered  con- 
temporaneously with  the  principal  undertaking,  which  is 
for  an  ascertained  amount,  that  the  guaranty  will  be  com- 
plete and  binding  without  notice  of  acceptance.^ 

§404.  Weight  of  Authority.— Where  the  obhgation 
attaches  to  future  transactions,  there  is  a  controversy  wliich 
remains  undetermined ;  with  the  United  States  comis,  and 
those  of  one  or  two  of  the  New  England  States  on  the  one 
side,^  and  the  courts  of  England,  ISTew  York  and  several 
other  states  of  the  Union  on  the  other.     Where,  however, 

of  you,  and  we  will  indemnify  the  same,"  was  held  an  absolute  but  not 
a  continuing  guaranty.  It  boimd  the  parties  without  notice  of  accept- 
ance, but  only  for  the  amount  of  the  first  pm-chase.  Wliitney  v.  Groot, 
24  Wend.,  83;  Webb  v.  Dickmson,  11  Wend.,  6.  See,  also,  Gard  v. 
Steveixs,  13  IVIich.,  393;  Congdon  v.  Reed,  7  R.  I.,  576;  Baker  v.  Rand, 
13  Bai-b.,  153. 

iMicliigan  State  Bank  v.  Peck,  28  Vt.,  200;  Lewis  v.  Dwight,  10 
Ck)nn.,  95. 

2  Tuckerman  v.  Fi-ench,  7  Greenl.,  115. 

3  Supra,  §§391,  393. 
*  Supra,  §§394,  396. 

5  In  some  of  the  cases  cited,  the  fact  that  the  ti-ansactions  are  in  the 
future  are  considered,  but  only  in  connection  with  other  circumstances 
held  to  be  sufficient  to  entitle  the  guarantor  to  notice. 


220  NOTICE    BY    WHICH    LIABILITIES    AKE    CREATED. 

the  undertaking  is  absolute  in  its  terms,  to  pay  unless  the 
principal  obligation  is  f  uliQUed,  and  there  is  a  limit  both  as  to 
time  and  amount,  the  weight  of  authority  is  decidedly  in 
favor  of  holding  the  guarantor  on  his  contract,  although 
no  notice  of  acceptance  was  giv^en.^  The  same  may  be  said 
of  continuing  guaranties  generally,  which  are  absolute  in 
their  terms.- 

§  405.  Rule  as  to  Indefinite  Letters  of  Credit. —  Upon 
the  other  hand,  where  the  collateral  liability  arises  on  a  let- 
ter of  credit  generally  or  specially  addressed,  which  is  in- 
definite as  to  the  amount,  and  the  time  within  which  the 
credit  or  future  advances  are  to  be  extended  or  given; 
although  the  language  of  the  instrument  may  be  technic- 
ally consistent  with  the  idea  of  a  present,  absolute  under- 
taking, as  distinguished  from  a  mere  proposal  to  guarantee, 
except  where  it  is  a  continuing  guaranty,  the  party  exe- 
cuting such  instrument  should  not  be  held  liable  thereon, 
without  notice,  express  or  implied,  of  the  acceptance  of  the 
guaranty ;  unless  there  had  been  a  previous  understanding 
that  the  credit  would  be  given  in  case  it  w^as  authorized  by 
the  guarantor.' 

§  406.  Time  of  Giving  Notice  of  Acceptance. — Even 
where  the  notice  is  held  necessary,  the  courts  have  gener- 
ally been  quite  liberal  as  to  the  time  within  which  it  should 
be  given.  It  is  not  always  essential  that  it  should  be  given 
prior  to  acting  upon  the  faith  thereof,  but  may  be  in  a 
reasonable  time  thereafter.* 

§  407.  Notice  of  Action  on  Guaranty. —  Next,  as  to  no- 
tice of  the  action  taken  by  the  party  demanding  the  indem- 
nity, upon  the  faith  of  the  guaranty.     It  is  not  the  notice 

1  Supra,  §§  394,  396,  and  cases  cited. 

2  Supra,  §  403. 

*  Or,  as  in  Drummond  v.  Pi*estman,  12  Wheat. ,  515,  where  the 
guaranty  acknowledged  the  credit  akeady  received  by  the  principal. 
See  Anderson  v.  Blakely,  3  W.  &  S.,  237;  Aldricks  v.  Higgins,  16  S.  & 
R.,  212. 

■•Douglass  V.  Reynolds,  7  Pet.,  113;  Louisville  Manufacturing  Co.  v. 
Welch,  10  How.  (U.  S.),  461 ;  Thompson  v.  Glover,  8  Rep.,  589. 


NOTICE   OF   GUAEANTr.  221 

which  is  sometimes  required,  simply  that  the  party  to  whom 
the  writing  is  addressed  has  acted  upon  the  faith  of  the 
guaranty  by  making  the  sohcited  advances  or  extending 
the  desired  credit,  which  comes  up  for  consideration  here. 
Notice  of  such  advances,  within  a  reasonable  time,  is  gen- 
erally treated  as  equivalent  to  antecedent  notice  of  the  ac- 
ceptance of  the  guaranty.^  Where  the  undertaking  is  in 
the  form  of  a  letter  authorizing  future  advances  in  cash, 
or  the  extension  of  credit,  by  indorsement  of  commercial 
paper  or  otherwise,  and  the  letter  is  intended  to  cover  suc- 
cessive transactions,  in  sums  of  various  magnitude,  as  the 
exigencies  of  the  business  to  be  transacted  may  demand,  it 
has  been  claimed  that  the  guarantor  was  entitled  to  notice 
of  each  transaction  as  it  occurred.  This  claim,  however, 
except  where  the  terms  of  the  letter  of  credit  specially  re- 
quire it,  cannot  be  maintained,^ 

§408.  Change  of  Manner  of  Reimbursement. —  The 
nearest  approach  to  a  holding,  that  the  party  acting  upon 
the  faith  of  such  a  letter  was  required  to  submit  the  details 
of  the  business  transacted  to  the  guarantor,  is  found  in  Ed- 
monston  v.  Drake,^  There  the  parties  extending  the  credit 
Avere  merchants  in  Havana,  who,  however,  were  not  the 
ones  to  whom  the  letter  was  specially  addressed,  Notice 
of  the  first  transaction,  which  was  a  purchase  of  the  prod- 
uce of  the  island,  pursuant  to  the  order  of  the  party  in 
whose  favor  the  letter  was  written,  was  duly  sent  to  the 
guarantor,  specifying  the  manner  in  which  payment  was  to 
be  made  —  by  bills  on  New  York.  This  was  promptly  ap- 
proved by  the  guarantor,  in  language  which  would  clearly 
imply  his  satisfaction  at  the  course  pursued  by  the  Havana 
correspondents,  and  would  place  them  upon  precisely  the 
same  footing  with  respect  to  the  letter  of  credit  as  though 
it  had  been  originally  addressed  to  them.  The  letter  itself 
did  not  specify  any  particular  manner  in  which  payment 

iBeU  V.  Kellor,  13  B,  Mon,,  381;  Adams  v.  Jones,  12  Pet.,  207, 

2  Douglass  V.  Reynolds,  supra,  §  406 ;  Lowe  v.  Beckwith,  14  B.  Mon.,  184. 

3  5  Pet.,  634. 


222  NOTICE   BY    WHICH    LIABILITIES   AKE    CREATED. 

was  to  be  made  to  reimburse  the  merchants  extending  the 
accommodation,  but  upon  further  advances  being  made  by 
them,  within  the  limits  of  the  credit  authorized,  to  be  paid 
for  by  bills  drawn  upon  London,  wliich  change  was  ap- 
proved by  the  party  in  whose  favor  the  credit  was  given, 
it  was  held  that,  as  this  alteration  in  the  manner  of  reim- 
bursement was  not  submitted  to  and  approved  by  the  guar- 
antor, he  did  not  incur  any  liability  thereby.  Mr.  Chief 
Justice  Marshall,  in  rendering  the  decision,'  regards  the 
notice  of  acceptance  of  the  guaranty  as  a  part  of  the  con- 
tract betAveeu  the  jiarties,  and  the  fact  that  the  change  was 
made  in  the  interest  and  with  the  consent  of  their  custo- 
mer as  of  no  consequence,  as  neither  of  them  had  a  right 
to  vary  a  contract  for  their  own  advantage  at  the  hazard 
of  the  guarantor. 

§  409.  Report  of  Particular  Transactions  Not  Gen- 
ally  Required. —  If  the  liabilit}'-  of  the  guarantor  in  this 
case  is  referred  to  the  correspondence  between  the  parties, 
commencing  with  the  notice  to  the  guarantor,  the  justice 
of  this  decision  may  well  rest  upon  the  ground  that  the  ap- 
proval of  the  substitution  of  parties  who  were  to  act  upon 
the  letter,  being  in  response  to  the  notice,  might  be  sup- 
posed to  adopt  the  contents  of  the  notice,  including  the 
manner  and  place  of  payment,  as  conditions  upon  which 
such  change  was  approved.  But  had  the  advances  been  made 
by  one  to  whom  the  letter  was  originalh^  addressed,  there 
being  no  conditions  attached  to  the  guarant}^,  whereby  the 
guarantor  was  to  exercise  a  continual  supervision  of  succes- 
sive transactions,  the  manner  and  place  of  payment,  as  well 
as  other  matters  of  detail,  might  have  been  arranged  be- 
tween the  parties  immediately  interested,  without  notice  to, 
or  consent  of,  the  party  collaterally  liable.^ 

§410.  Notice  of  State  of  Accounts  on  Demand.— Al- 
though the  ultimate  liability  of  a  guarantor,  in  case  of  a 
continuing  guaranty,  may  not  depend  upon  his  receiving 

15  Pet.,  638. 

2  Lowe  V.  Beckwith,  14  B.  Mon.,  184 


NOTICE    OF   GUAEAXTT.  223 

notice  of  each  successive  transaction  had  upon  the  faith  of 
such  guaranty,  it  is  doubtless  true  that  upon  demand  made 
by  him  therefor,  he  would  be  entitled  to  information  con- 
cerning the  state  of  the  accounts  between  the  party  extend- 
ing the  credit  and  the  one  originally  liable  as  principal. 
His  interest  in  having  such  knowledge  or  information  could 
not  be  questioned.  Such  contracts  are  not  generally  made 
in  anticipation  of  default  by  the  principal,  and  are  fre- 
quently based  upon  a  private  understanding  between  the 
guarantor  and  the  part}^  for  whose  benefit  the  guaranty  is 
made.  The  information  obtained  by  the  guarantor,  upon 
inquiry,  might  be  suificient  to  warrant  him  in  refusing  to  be 
liable  for  f mother  advances,  and  in  withdrawing  his  guaranty, 
which  he  might  do  by  notice  that  he  will  be  no  longer 
responsible.^ 

§  411.  Notice  of  Principal's  Failure. —  Finall}-,  as  to 
notice  of  the  principal's  failure  to  perform.  This  branch 
of  the  question  is  strangely  confused  by  some  of  the  author- 
ities, with  that  which  has  reference  to  the  notice  of  accept- 
ance. Cases  are  cited  and  opinions  referred  to  in  support 
of  the  doctrine  requiring  or  dispensing  with  notice  of  the 
acceptance  of  a  guaranty,  and  of  the  subsequent  demand 
and  non-payment  by  the  principal,  interchangeabl}',  as 
though  they  were  one  and  the  same  thing.  It  is  true  that 
the  general  purpose  of  the  notice  in  both  cases  is  that  the 
guarantor  may  be  advised  of  his  liability.  Here,  however, 
the  parallel  ends.  In  the  one  case  the  notice  is  intended  to 
render  the  guarantor  liable  in  case  of  another's  default;  in 
the  other  he  is  notified  that  default  has  been  made,  and  he 
becomes  hable  as  though  he  were  a  principal.  The  notice 
of  acceptance,  when  required  at  all,  is  essential  to  the  com- 
pletion of  the  contract  of  guaranty.  The  notice  of  the 
principal's  failure  is  of  the  happening  of  the  only  contin- 
gency to  the  creation  of  a  liabiUty  such  as  would  arise  from 
an  original,  absolute  contract,  of  Avhich  the  consideration 
had  passed  directly  to  the  obligor;  it  advises  the  guarantor 

1  Mason  v.  Pritchaxd,  2  Camp.,  436. 


224  NOTICE    BY    AVniCII    LIAEILITILS    AKE    CREATED. 

that  the  acceptor  of  the  guaranty  has  a  direct  personal  de- 
mand against  him.  Both  branches  of  the  question,  how- 
ever, are  often  decided  in  the  same  case.^ 

§  412.  Conflict  of  Authority. —  The  authorities  are  very 
conflicting  as  to  whether  guarantors,  distinctly  recognized 
as  such,  are  entitled  to  notice  of  the  principal's  failure  to 
perform  in  any  event.  And  where  it  is  held  tliat  they  are 
entitled  to  notice,  there  is  no  little  contrariety  of  opinion 
as  to  the  character  of  the  notice  to  be  given. 

§  418.  Early  Massachusetts  Authorities. —  It  is  laid 
down  so  repeatedly  in  the  state  of  Massachusetts  in  some  of 
the  earlier  cases,  that  the  guarantor  is  entitled  to  notice  of 
a  demand  upon  the  principal  and  non-payment  by  him,  that 
it  was  at  one  time  regarded  as  a  settled  rule  of  law  in  that 
state,  which  did  not  depend  upon  the  natm'e  of  the  collat- 
eral undertaking  so  long  as  it  was  governed  by  the  rules 
affecting  guaranties.^  This  conclusion  is  clearly  deducible 
from  the  authorities  cited  as  well  as  others  from  the  same 
court,  particularly  that  of  Babcock  v.  Bryant,^  where  it  was 
held  that  a  failure  to  prove  such  notice  was  sufficient  to  de- 
feat plaintiff's  action  against  the  guarantor,  although  it  did 
not  appear  that  there  had  been  such  a  change  in  the  cir- 
cumstances of  the  principal  defendant,  subsequent  to  the 
maturity  of  the  obligation,  as  to  work  injury  to  his  guar- 
antor, or  to  discharge  him  from  liabihty. 

§414.  Demand  and  Notice  Held  Necessary. —  So  in 
Isley  V.  Jones,*  where  the  action  was  on  a  guaranty  for 
the  payment  of  the  purchase  price  of  goods  sold,  it  was 
held  that  the  plaintiff  must  allege  and  prove  that  a  demand 
had  been  made  upon  the  purchaser  and  that  he  failed 
or  refused  to  pay  the  amount  of  the  demand.     On  excep- 

1  LouisTille  Manuf.  Co.  v.  Welch,  10  How.,  461. 

2 Oxford  Bank  v.  Hajoies,  8  Pick.,  423;  Babcock  v.  Bryant,  12  id.,  133; 
Dole  V.  Young,  24  id.,  250;  Isley  v.  Jones,  12  Gray,  260;  Talbot  v.  Gay, 
18  Pick.,  534. 

3  Supra. 

*  Supra,  %  413. 


NOTICE    OF   GUARANTY.  225 

tions  taken  to  the  ruling  of  the  trial  court,  that  notice  to 
the  guarantor  of  such  demand  and  refusal  of  the  principal 
to  comply  was  not  essential  to  the  right  of  action  on  the 
collateral  undertaking,  the  exceptions  were  sustained  by  the 
appellate  court. 

§  41 5.  Later  Authority  —  Contra  to  Above. —  In  a  later 
case,  however,  by  the  same  court,  the  doctrine  laid  down 
seems  to  ver}^  materially  modify  the  rules  tlieretofore  recog- 
nized in  that  state  with  reference  to  the  conditions  of  a 
guaranty,  if  it  does  not  abrogate  the  rule  entirely  as  applied 
to  the  question  of  notice.^  Judge  "Wells,  in  delivering  the 
opinion  of  the  com-t,  says:-  "  The  better  doctrine,  and  that 
which  seems  to  us  the  best  supported,  both  upon  reasoning 
and  authority,  is  that  demand  and  notice  are  not  essential 
prerequisites  to  an  action,  and  need  not  be  alleged  nor  proved 
unless  the  terms  of  the  guaranty,  or  the  nature  of  the  thing 
guaranteed,  require  such  proceeding  in  order  to  a  proper 
fulfillment  of  the  obligations  imposed  by  the  guaranty, 
upon  the  party  holding  it,  or  in  order  to  establish  a  default 
by  the  principal,  and  a  breach  of  the  contract  declared  on. 
The  necessity  of  such  demand  and  notice  is  not  incidental 
to  the  relation  of  guarantor  and  guarantee,  as  it  is  to  that 
of  indorser  and  indorsee.  It  must  be  derived,  if  it  exist, 
from  the  terms  of  the  contract  or  the  nature  and  circum- 
stances of  the  particular  case,  and  not  from  the  general 
rule."  The  case  under  review  was  an  action  on  a  guaranty 
of  the  payment  of  rents,  in  the  following  language :  "  I 
hereby  guarantee  that  G.  D.  B.  shall  pay  to  A.  Y.  $3  per 
week  in  advance  for  rent  of  house,  ]N"o.  9  Yinal  Place ;  also 
$1  per  week  for  back  rent  now  due,  *  -  *  this  agi^ee- 
ment  to  hold  good  for  nineteen  weeks,  or  until  the  back 
rent  has  been  paid,"  The  doctrine  laid  down  in  the  opin- 
ion was  applied  by  the  learned  judge,  who  ably  reviewed 
prior  authorities,  to  the  circumstances  of  this  case,  by  hold- 
ing that  as  the  contract  provided  for  the  payment  of  cer- 

1  Vinal  V.  Richardson,  13  Allen,  521. 

2  Id.,  527. 

15 


226  NOTICE    BY    WHICH    LIABILITIES    ARE   CREATED. 

tain  sums  at  certain  times,  fixed  and  absolute  by  the 
guaranty  itself,  it  rec[uired  no  act  of  the  plaintiff  to  precede 
the  performance  of  the  principal,  except  permission  to 
occupy.  ISTon-payment  by  the  principal  was  at  once  a 
breach  of  his  contract  and  that  of  his  guarantor.  The  obli- 
gation to  pay  did  not  depend  upon  demand,  and  hence  the 
guarantor's  Uability  could  not  bo  made  to  depend  upon  notice 
of  such  demand.  The  case  of  Isley  v.  Jones  ^  is  expressly 
overruled,  in  so  far  as  it  differs  from  this,  and  other  prior 
cases  in  conflict  must,  by  implication,  be  regarded  as  shar- 
ing the  same  fate. 

§  416.  Indiana  Authorities. — In  Virden  v.  Ellsworth,^ 
which  was  an  action  on  the  following  contract  of  guaranty : 
"  For  value  received,  I  guarantee  the  paj^ment  of  the  rent 
as  stipulated  by  said  F.,  in  case  of  non-payment  by  him," 
the  complaint  was  held  bad  on  demurrer,  for  the  reason 
that  it  contained  no  special  averment  of  notice  to  the  guar- 
antor of  the  non-payment  of  the  rent,  "or  any  excuse 
sho"\vn  for  the  failure  to  give  such  notice  or  aver  it."  Such 
notice  w^as  also  held  essential  in  ah  earlier  case  by  the  same 
com*t,  w^here  the  action  was  on  a  guaranty  of  payment  of 
the  purchase  price  of  goods  sold  and  delivered.^  Here,  how- 
ever, it  appeared  that  the  guarantee  had  been  guilty  of 
laches,  by  which  the  guarantor  w^as  damaged,  the  principal 
being  solvent  at  the  time  of  his  default,  but  becoming  insolv- 
ent before  the  institution  of  tlie  suit  on  the  contract  of 
guaranty.  Subsequently,  in  a  case  where  notice  was  not 
given  until  nearly  a  year  after  the  principal's  default,  w^here 
the  question  of  damage  to  the  guarantor,  by  the  delay,  was 
not  raised,  it  was  held  by  the  same  court  that  the  guarantor 
was  liable.'*  The  agreement  contained  an  express  promise 
to  pay  or  secure  a  certain  sum  of  money,  and  the  collateral 
undertaking  was  an  absolute  guaranty  that  the  principal 

1  Supra,  §  413. 

2  15In(i.,  144. 

3  Smith  V.  Bainbridge,  6  Blackf.,  12. 
♦Leonard  v.  Shirts,  33  Ind.,  214. 


NOTICE    OF   GUAEANTY.  227 

"would  comply  with  the  terms  of  his  contract.  It  was  held 
by  the  court  that  the  securing  of  the  indebtedness  was  a 
matter  for  the  protection  of  the  guarantors,  and  the  duty 
rested  upon  them  to  see  that  it  was  done,  and  for  that  reason 
they  could  not  object  to  the  delay  in  giving  notice.  In  a 
still  later  case,  it  was  decided  upon  the  authority  of  Smith 
v.  Bainbridge^and  Yirden  v.  Ellsworth,^  that  where  it  ap- 
peared that  owing  to  the  negligence  of  the  plaintiff  in  pur- 
suing his  remedy  against  the  principal,  or  notifying  the 
guarantor  of  the  principal's  default,  the  guarantor  lost  his 
remedy  against  the  principal  by  the  latter's  insolvency,  such 
guarantor  would  be  discharged.'  In  this  case  the  opinion 
of  the  court  is  expressly  reserved  as  to  what  might  be  the 
rule  as  to  notice  in  a  case  presenting  a  different  state  of 
facts." 

§417.  Negligence  of  Griiarantee. —  The  foregoing  au- 
thorities leave  the  doctrine  to  turn  upon  a  question  of  neg- 
ligence of  the  guarantee,  by  which  the  guarantor  suffers 
detriment — or  rather  would  suffer  detriment,  if  he  were 
still  held  on  his  contract  of  guaranty.  There  are  also 
numerous  other  cases,  both  American  and  English,  where 
the  same  distinction  is  observed.'^ 

§  418.  Rule  in  Connecticut  —  Absolute  Gruaranty. — 
There  are  other  cases  of  guaranty  where  it  is  held  that  no- 
tice is  unnecessary,  for  the  reasons  assigned  in  the  summary 
of  the  doctrine  contained  in  Yinal  y.  Richardson.^  As, 
where  the  principal  contracted  with  the  guarantee  to  pur- 
chase and  pay  a  stipulated  price  for  a  certain  number  of 
trees  which  the  guarantee'  undertook  to  cultivate  for  him, 

1  Supra. 

"^  Supra. 

3  Gaff  V.  Sims,  -15  Ind.,  262. 

•*  Opinion  of  Downey,  C.  J.,  id.,  266. 

sGibbs  V.  Cannon,  9  Serg.  &  R.,  198;  Woods  v.  Sherman,  71  Pa.  St., 
100;  Sears  v.  Van  Dusen,  25  Mich.,  351;  Green  v.  Thompson,  33  la.,  293; 
Janes  v.  Scott,  59  Pa.  St.,  178. 

s  13  Allen,  521;  Gage  v.  Lewis,  68  Dl.,  604;  Lamphere  v.  (Jowen,  43 
Vt.,  175. 


228  NOTICE  BV  ^VIIIC^  liabilities  are  created. 

and  to  deliver  at  a  certain  time,  and  in  default  of  compliance 
with  the  terms  of  the  contract  the  party  so  failing  should 
forfeit  and  pay  to  the  other  a  certain  stipulated  sum.  This 
contract  Avas  guaranteed  on  behalf  of  the  principal  in  these 
words :  "  In  case  B.,  one  of  the  parties  named  in  the  fore- 
going instrument,  should  incur  the  forfeiture  mentioned 
therein,  I  hereby  guarantee  the  payment  of  the  same."  It 
was  held  that  the  guarantor  was  not  entitled  to  notice  of 
the  principal's  failure.^  Here  the  act  guaranteed  was  to  be 
done  by  a  third  person  who  was  known.  The  guarantor 
knew  its  terms  and  the  time  of  performance  as  well  as  the 
guarantee,  and  could  have  ascertained  by  inquiry  whether 
the  forfeiture  had  been  incurred  by  his  .principal,  so  that 
notice  to  him  was  unnecessary.-  This  case  also  involved 
the  question  as  to  whether  the  rule  would  be  changed  by 
the  subsequent  insolvency  of  the  principal,  and  it  was  de- 
cided that  the  guarantee  was  not  required  to  use  diligence 
in  proceeding  against  the  principal,  and  the  fact  that  the 
latter  disposed  of  his  property  out  of  which  the  debt  might 
have  been  made,  subsequent  to  the  forfeiture,  would  not 
discharge  the  guarantor. 

§  419.  Uncertainty  of  Amount. —  The  only  material 
difference  between  the  foregoing  case  and  that  of  Craft  v. 
Isham,''  previously  decided  by  the  same  court,  was  that  the 
amount  in  the  case  last  cited  was  uncertain,  though  strictly 
limited  to  a  specified  sum.  The  time  fixed  for  payment 
was  at  the  end  of  three  years.  The  contract  was  as  uncon- 
ditional as  a  guaranty  can  be  —  to  pay  in  case  the  principal 
failed  to  do  so.  The  credit  on  the  last  item  furnished 
under  the  guaranty  expired  in  about  one  year  fi'om  the  date 
of  the  guaranty.     In  about  eighteen  months  thereafter  the 

1  Hammond  v.  Gilmore,  14  Comi.,  479. 

2  Farm.  &  Mech.  Bank  v.  Kercheval,  2  IVIich.,  504;  Ward  v.  Henry, 
5  Conn.,  595;  Breed  v.  Hillliouse,  7  Conn.,  523;  Williams  v.  Granger, 
4  Day,  444;  Wright  v.  Simpson,  6  Ves.  Jr.,  714^34;  Duffield  v.  Scott, 
3  T.  R.,  374;  Vyse  v.  Wakefield,  6  Mees.  &  W.,  443;  Brackett  v.  Ricli. 
23  Minn.,  485. 

313  Conn.,  28. 


NOTICE    OF    GUARANTY.  229 

principal  became  insolvent,  but  notice  was  not  given  of  his 
failure  to  pay  until  six  months  after  the  expiration  of  the 
three  years.  It  was  held  that  the  guarantor  was  entitled 
to  notice  within  a  reasonable  time  of  the  principal's  default, 
and  that  the  time  in  which  it  was  given  in  this  case  was  not 
reasonable.  The  court  in  this  case  foUows  the  decisions  of 
the  United  States  courts  already  cited,  as  well  as  the  early 
Massachusetts  cases,  and  the  manner  in  which  the  case  of 
Hammond  v.  Gilmore  ^  is  distinguished  from  that  of  Craft 
V.  Isham  ^  is  that  the  latter  was  a  case  of  guaranty  by  a  let- 
ter of  credit,  and  the  amount  involved  was  unliquidated. 

§  420.  Means  of  Knowledge  Within  Reach  of  Guar- 
antor.—  In  a  recent  case  decided  in  Missouri,  where  the 
guaranty  was  of  the  collectibility  of  certain  notes,  it  was 
decided  that  notice  was  unnecessary.'  Judge  Wagnek,  in 
rendering  the  oj^inion  of  the  court,  lays  it  down  that  when 
a  guarantor  binds  himself  to  be  answerable  for  a  specific 
sum,  under  certain  designated  circumstances,  he  has  the 
means  within  his  own  hands  of  determining  the  extent  of 
his  obligations.  The  learned  judge  makes  the  following  apt 
quotation  from  Lord  Abinger  in  Yyse  v.  Wakefield :  *  "  The 
rule  to  be  collected  from  the  cases  seems  to  be  this :  that 
when  a  party  stipulates  to  do  a  certain  thing,  in  a  certain 
specific  event  which  may  become  known  to  him,  or  with 
which  he  can  make  himself  acquainted,  he  is  not  entitled  to 
notice  unless  he  stipulates  for  it ;  but  where  it  is  to  do  a 
thing  which  lies  within  the  peculiar  knowledge  of  the  oj^po- 
site  party,  then  notice  ought  to  be  given  him."  ^ 

^  Supra,  §418, 
^  Supra. 

3  Barker  v.  Scudder,  56  Mo.,  272. 

4  6Mees.  «&  W.,  442. 

5 See,  also.  Clay  v.  Edgerton,  19  Ohio  St.,  549;  Marvin  v.  Adamson,  11 
la.,  371;  Hough  v.  Gray,  19  Wend.,  202;  Heaton  v.  Hulbert,  4  lU.,  489; 
Partridge  v.  Davis,  20  Vt.,  499;  Sample  v.  Martin,  46  Ind.,  226;  Burnham 
V.  Gallentine.  11  Ind.,  295;  Watson  v.  Beabout,  18  Ind.,  281 ;  Studebaker 
V.  Cody,  54  Ind.,  586;  Prentiss  v.  Garland,  64  Me.,  155;  Bashford  v. 
Shaw,  4  Ohio  St.,  263. 


230  NOTICE    BY    WHICH    LIABILITIES   AKE   CREATED. 

§  421.  Pennsylvania  Doctrine. —  The  distinctioii  observed 
by  the  supreme  court  of  Pennsylvania  between  contracts 
of  guaranty  and  contracts  of  suretyship  is  one  which,  how^- 
ever  well  founded  in  reason,  would  tend  to  mislead  the  in- 
quirer as  to  the  views  of  that  court  upon  the  question  of 
notice  to  guarantors,  if  their  decisions  of  the  question  are 
to  be  interpreted  by  the  definition  of  the  term  "  guaranty  " 
which  seems  to  prevail  elsewhere.  There  the  term  is  re- 
stricted in  its  application  to  such  contracts  as  warrant  the 
abihty  of  the  principal  to  pay  or  perform.  It  is  simply  an 
undertaking  that  the  principal  will  be  solvent  w^hen  the 
obhgation  matures,  or  what  would  elsewhere  be  construed 
as  a  guaranty  of  collectibility ;  while  that  w^hich  we  have 
follow^ed  the  authorities  of  other  states  in  treating  as  an 
absolute  or  unconditional  guaranty  of  payment  or  perform- 
ance by  one  originally  liable  as  a  principal,  is  there  regarded 
as  a  contract  of  suretyship.^ 

§  422.  Guaranty  and  Suretyship. —  It  does  not  seem  to 
be  material  that  the  words  "  guarantee  "or  "  guaranty  "  are 
used  m.  the  undertaking ;  it  will  not  be  construed  as  a  guar- 
anty for  that  reason  if  it  imports  an  absolute  undertaking 
to  be  responsible  for  the  payment  or  discharge  of  the  obli- 
gation by  the  principal.-  In  the  case  cited  Judge  Shaes- 
wooD  remarks : '  "  The  leaning  ©f  this  com't  of  late  years 
has,  therefore,  very  properly  been  against  construing  such 
contracts  to  be  general  guaranties."  The  language  of  the 
contract  under  consideration  was  as  f  oUow^s :  "  I  do  hereby 
guarantee  to  S.  &  Co.  the  payment  of  contract  made  by 
them  with  D.  &  W.  to  the  amount  of  $10,000."  Though  the 
question  was  not  properly  before  the  court,  it  being  unnec- 
essary to  a  decision,  the  learned  judge  plainly  intimated  that 

1  Reigart  v.  White,  52  Pa.  St.,  438;  Brown  v.  Brooks,  25  id.,  2^10;  John- 
ston V.  Chapman,  3  Pa.,  18;  Isett  v.  Hoge,  2  Watts,  128;  Rudy  v.  Wolf, 
16  Serg.  &  R.,  79;  Kramph  v.  Hatz,  52  Pa.  St.,  525;  Ashton  v.  Bayard, 
71  Pa.  St.,  139;  Woods  v.  Sherman,  71  Pa.  St.,  100. 

2  Woods  r.  Sherman,  71  Pa.  St.,  100. 

3  Id..  104. 


NOTICE   OF   GUAEANTY.  231 

had  it  been  raised  this  would  have  been  construed  as  a  con- 
tract of  suretyship,  upon  which  the  obligor  would  be  liable 
to  the  party  for  whose  security  it  was  given  without  ante- 
cedent notice  of  the  principal's  default.  ^  Where,  therefore, 
we  find  the  authorities  of  this  state  holding  that  notice  of 
the  principal's  default  is  necessary  to  hold  the  guarantor  on 
his  contract,  and  that  the  remedy  must  first  be  exhausted 
against  a  solvent  principal  before  an  action  can  be  main- 
tained against  the  guarantor,  it  should  be  understood  as 
applying  only  to  contracts  guaranteeing  the  principal's  solv- 
vency.2 

§  423.  Deductions  from  Authorities. —  From  a  consid- 
eration of  the  reported  cases  bearing  upon  the  question,  the 
current  of  authority  seems  to  be  decidedly  in  favor  of  the 
doctrine  that  where  the  contract  of  guaranty  contemplates 
indemnity  to  the  guarantee  in  a  certain  sum,  or  a  sum  capa- 
ble of  being  ascertained  Avith  readiness  by  the  guarantor, 
within  a  certain  time,  and  depending  upon  the  single  con- 
tingency of  the  principal's  failure  to  perform,  notice  of  such 
failure  is  not  a  condition  precedent  to  the  guarantee's  right 
of  recovery  a'gainst  the  guarantor.  "Where  the  guaranty  is 
of  the  pa3Tnent  of  a  promissory  note,  or  other  demand,  for 
a  fixed  sum,  already  owing  by  the  principal,  and  the  con- 
tract of  guaranty  is  expressed  in  the  usual  form,  the  rule  is 
more  uniform.  In  fact,  the  later  authorities  are  almost,  if 
not  quite,  unanimous  in  holding  that  notice  in  such  cases  is 
unnecessary.'  But  where  the  obligation  guaranteed  is  of 
future  performance,  and  the  amount  is  uncertain  within  a 
limit,  there  is  a  disagreement  wliich  we  shall  not  endeavor 

iSee,  also,  Amsbaugh  v.  Gearhart,  11  Pa.  St.,  482;  Marberger  v. 
Pott,  16  id.,  9;  Campbell  v.  Baker,  46  id.,  243;  Allen  v.  Hubert,  49  id., 
259. 

2 See,  also,  Clay  v.  Edgerton,  19  Ohio  St.,  549;  Marvin  v.  Adamson,  11 
la.,  371;  Hough  v.  Gray,  19  Wend.,  202;  Heaton  v.  Hulbert,  4  111.,  489; 
Partridge  v.  Davis,  20  Vt.,  499;  Sample  v.  Martin,  46  Ind.,  226;  Burn- 
ham  V.  Gallentine,  11  Ind.,  295;  Watson  v.  Beabout,  18  Ind.,  281 ;  Stude- 
baker  v.  Cody,  54  Ind.,  586;  Prentiss  v.  Garland,  64  Me.,  155. 

3  Parman  v,  Brewster,  15  Gray,  271. 


232  NOTICE    BY    WHICH    LIABILITIES    AKE    CREATED. 

to  reconcile.  However,  the  current  of  modern  American 
and  Euglisli  autliority  is  against  the  observance  of  the  dis- 
tinction predicated  simply  upon  the  fact  that  the  sum  of 
the  principaFs  liability  actually  incurred  is  uncertain.^ 

§424.  Obligation  Uulimited  and  Uncertain. —  Where, 
however,  the  obligation  assumed  by  the  principal  is  not 
only  uncertain  in  amount  within  a  fixed  limit,  but  is  un- 
limited, and  for  an  uncertain  time,  or  depends  upon  other 
contingencies  besides  the  failure  of  performance  of  the 
principal,  the  knowledge  of  the  happening  of  which  from 
the  circumstances  would  properly  be  with  the  guarantee, 
notice  of  the  accruance  of  the  liability  as  well  as  notice  of 
t]ie  acceptance  of  the  guaranty  should  be  given  the  guar- 
antor within  a  reasonable  time,  and  such  notice  should  be 
at  least  approximately  certain  as  to  the  amount  of  the 
principal's  indebtedness  for  which  the  guarantor  is  collater- 
ally hable. 

§425.  Notice  Not  as  of  Dishonor  of  Commercial 
Paper. —  In  no  case  is  it  held  that  the  guarantor  is  entitled 
to  notice  within  the  time,  or  according  to  the  formalities 
required  in  order  to  bind  drawers  and  indorsers  of  commer- 
cial paper.  Even  where  such  notice  has  been  held  essential 
to  the  hability  of  guarantors,  the  courts  have  been  liberal  as 
to  the  time  in  which  it  should  be  given ;  ^  and  have  even 
held  that  it  would  be  sufficient  when  given  after  the  suit, 
commenced  without  it,  had  been  discontinued,  provided  the 
guarantor  had  not  suffered  detriment  by  the  delay .^ 

§426.  Notice  Excused — Reasonable  Time. —  And  in 
cases  decided  by  the  courts  of  highest  authority,  where  it 
is  held  necessary  to  give  notice  to  the  guarantor  of  the 
principal's  default,  it  is  held  that  where  the  principal,  at 
the  maturity  of  the  demand,  has  become  insolvent,  and 
utterl}^  incapable  of  responding  to  the  claim,  notice  will  be 
excused,  and  even  when  necessary  the  time  within  which  it 

1  Holbrow  V.  WUkins,  1  B.  &  C,  10. 
2Babcock  v.  Bryant,  12  Pick.,  133. 
3 Dole  V.  Young,  24  Pick.,  250. 


NOTICE    OF   GUAKANTY.  233 

is  given  will  be  held  reasonable  or  unreasonable,  according 
to  the  circumstances  of  the  parties  and  the  probabilities  of 
injury  to  the  guarantor  by  reason  of  the  delay .^ 

§  427.  Waiyer  of  Notice.— It  seems  hardly  necessary  to 
add  that  in  any  case  where  the  fact  of  the  principal's  de- 
fault is  well  kno^vn  to  the  guarantor,  or  where  he,  in  antici- 
pation of  such  default,  either  expressly  or  by  implication 
waives  notice,  he  cannot  afterwards  take  advantage  of  a 
technical  failm^e  to  notify  him  of  such  default."  And  the 
same  doctrine  as  to  waiver  and  excuse  of  notice  would  apply 
with  equal  force  to  notice  of  acceptance  of  guaranty. 

1  Louisville  Manufac.  Co.  v.  Welch,  10  How.,  461 ;  Bebee  v.  Dudley,  26 
N.  H.,  249;  Walker  v.  Forbes,  25  Ala.,  139;  March  v.  Putney,  56  N.  H., 
34;  Fegenbush  v.  Lang,  28  Pa.  St.,  193,  Bull  v.  BUss,  30  Vt.,  127;  Dole 
V.  Young,  24  Pick.,  250. 

2  Bickford  v.  Gibbs,  8  Cush.,  154. 


234:  KOTICE    BY    WHICH    LIABILITIES    AKE    CKEATED. 


III.   Notice  of  Assignment  of  Choses  in  Action. 

§  428.  Definition  of  Glioses  ia  Action. 

429.  Not  Assignable  at  Common  Law. 

430.  Assignment  Ti'ausfers  Claim. 

431.  Assignee  Takes  Subject  to  Equities. 

432.  Effect  of  Notice. 

433.  Assignment  Incomplete  Without  Notice, 

434.  Held  Necessary  as  Against  Creditors. 

435.  Object  of  Notice. 

436.  Assignee  Takes  No  More  than  Assignor  Had. 

437.  By  ^Vliom  Notice  Given  —  Manner  of  Giving  Notice. 

438.  EJiowledge  Presumed. 

439.  Put  Upon  Inquuy. 

440.  Double  Purpose  of  Notice  —  Laches  of  the  Assignee. 

441.  Overdue  Bills. 

442.  Negotiable  Paper  Without  Lidorsement. 

443.  Balance  Due  on  Account. 

444.  Pohcies  of  Insurance. 

445.  Notice  to  Insurer. 

446.  Conditions  of  Pohcy. 

447.  Assignments  of  Subject  of  Insurance. 

448.  By  Eetiring  Partners. 

449.  Notice  May  be  Implied. 

450.  Assignment  After  Loss. 


§  428.  Definition  of  Glioses  in  Action. —  The  definition 
of  choses  in  action,  as  given  by  Mr.  Blackstone,  only  in- 
cludes debts  due  or  damages  recoverable  for  the  breach  of 
a  contract,  express  or  implied.^  But  later  authorities  have 
enlarged  the  definition  so  as  to  embrace  all  rights  to  per- 
sonal property  not  in  possession,  which  may  be  enforced  by 
action,  whether  the  owner  has  been  deprived  of  such  pos- 
session b}^  the  tortious  acts  of  another,  or  by  the  breach  of 
an  express  or  impUed  contract.^ 

12B1.  Com.,  396-7. 

2Gillet  V.  Faircliild,  4  Den.,  80;  HaU  v.  Robinson,  2  Comst.  (N.  Y.), 
293;  North  v.  Turner,  9  S.  &  R.,  244;  Jordan  v.  Gillen,  44  N.  H.,  424; 
Griffin  V.  WUcox,  21  Ind.,  370;  Final  v.  Backus,  18  Mich,,  218;  More  r 
Massini,  32  Cal.,  590. 


NOTICE   OF   ASSIGNMENT   OF   CHOSES   IN   ACTION.  235 

§  429.  Not  Assignable  at  Common  Law. —  It  is  a  rule 
of  the  common  law,  too  familiar  to  require  citation  or  illus- 
tration, that  rights  of  this  nature  are  not  assignable,  so  as 
to  allow  the  assignee  to  maintain  an  action  for  the  thing 
assigned  in  his  own  name.  But  courts  of  equity  and  modern 
statutes  have  virtually  abrogated  this  rule.  The  law  mer- 
chant has  established  a  different  doctrine  with  respect  to 
negotiable  instruments  assigned  before  maturity ;  but  in  so 
far  as  the  doctrine  of  notice  affects  commercial  paper,  it  is 
treated  at  length  in  a  subsequent  chapter.^ 

§  430.  Assignment  Transfers  Claim. —  The  notice  re- 
quired in  cases  of  assignment  cannot  be  said  in  the  strictest 
sense  to  create  a  liability.  The  original  liability  is  created 
when  the  obligation  is  incmTed  by  the  debtor.  The  assign- 
ment merely  transfers  the  claim  from  the  original  creditor 
to  his  assignee,  and  notice  to  the  debtor  imposes  upon  him 
an  obligation  to  recognize  the  transfer,  and  pay  the  amount 
due  to  the  assignee.^ 

§431.  Assignee  Takes  Subject  to  Equities. —  One  of 
the  incidents  of  assignments  of  demands  not  recognized  as 
negotiable,  according  to  the  law  merchant,  as  well  as  over- 
due negotiable  paper,  is  that  the  assignee  takes  subject  to 
all  equities  subsisting  between  the  parties  at  the  time.*  The 
debtor  is  entitled  to  all  credits  for  pa^^ments,  as  well  as  all 
set-offs  which  he  may  have  against  his  original  creditor.^ 
Even  after  the  assignment  has  been  made,  the  debtor,  being- 
ignorant  of  that  fact,  will  be  protected  in  making  payment 
of  the  debt  in  whole  or  in  part,^  or  in  any  set-off  to  the  de- 

^Post,  ch.  X. 

2  Jones  V.  Witter,  13  Mass.,  304;  Eodick  v.  Gandell,  1  De  G.,  M,  &  G., 
763;  In  re  Way's  Tnists,  2  De  G.,  J.  &  S.,  365;  Donaldson u.  Donaldson, 
Kay,  711;  Southard  v.  McBrown,  63  Cal.,  545. 

^Sanborn  v.  Little,  3  N.  H.,  359. 

*Ford  V.  Stuart,  19  Johns.,  342;  Bank  of  Niagara  v.  McCracken,  18 
Johns.,  493 ;  Gould  v.  Chase,  16  Johns.,  226 ;  Hackett  v.  Maitin,  8  Me.,  77. 

5 Murray  v.  Lylburn,  2  Johns.  Ch.,  441;  Livingston  v.  Dean,  id.,  479; 
Davis  V.  Barr,  9  S.  &  R.,  137;  Mangles  v.  Dixon,  3  H.  L.  Cas.,  703;  Life 
Ins.  Soc'y  v.  Pooly,  5  Jur.,  N.  S.,   129;   Faull  v.  Tinsman,  36  Pa.  St., 


23G  NOTICE    BY    WHICH    LIABILITIES    AEE    CREATED. 

mand  he  may  have  acquired. ^  The  right  of  the  assignee, 
except  where  the  assignment  is  authorized  by  statute,  being 
equitable  rather  than  legal,  no  court  of  equity  would  be 
willing  to  interpose  in  his  behalf,  where  the  consequence 
would  be  to  subject  the  innocent  debtor  to  the  hardship  of 
being  compelled  to  make  double  payment  of  the  demand.^ 
Where  the  cliose  in  action  is  not  negotiable,  the  debtor  may 
avail  himself  of  any  defenses  he  ma}''  acquire  prior  to  the 
notice  of  assignment.* 

§  432.  Effect  of  Notice. —  But  after  the  debtor  has  re- 
ceived notice  of  the  assignment  of  the  demand,  he  cannot 
discharge  any  portion  of  the  indebtedness  by  payment  to 
the  assignor.*  Kor  can  he  acquire  au}"  defense  to  an  action 
for  the  debt  assigned,  as  between  himself  and  the  assignor. 

108;  Hogan  v.  Black,  4  Pac.  Eep.,  943;  Bishop  v.  Gai'cia,  14  Abb.  Pr.,  69; 
Loudon  V.  Tiffany,  5  Watts  &  S.,  367;  Kider  v.  Johnson,  20  Pa.  St.,  190; 
KeUogg  V.  Smith,  26  N.  Y.,  18;  Reed  v.  Marbley,  10  Paige,  409;  Van 
Keuren  v.  Corkins,  66  N.  Y.,  77;  N.  Y.  Life  Las.  Co.  v.  Smith,  2  Barb. 
Ch.,  83;  Upton  v.  Moore,  44  Vt.,  552;  Atkinson  v.  Runnells,  60  Me.,  440; 
Brashear  v.  West,  7  Pet.,  608;  Cook  v.  Mut.  Ins.  Co.,  53  Ala.,  37. 

1  Myers  v.  Davis,  23  N.  Y.,  489;  Barlow  v.  Myers,  64  N.  Y.,  41;  Frick 
V.  White,  57  N.  Y„  103;  Adams  v.  Rodermel,  19  Ind.,  839;  Morrow's 
Assignees  v.  Bright,  20  Mo.,  298;  Miller  v.  Florer,  15  Ohio  St.,  148;  Rich- 
ards V.  Daily,  34  Iowa,  427;  Norton  v.  Foster,  12  Kans.,  44;  Harris  v. 
BarweU,  65  N.  C,  534. 

2  Comstock  V.  Farnum,  3  Mass. ,  96 ;  Stocks  v.  Dobson,  19  E.  L.  &  E. , 
96;  Hatch  v.  Dennis,  10  Me.,  244. 

3  Western  Bank  v.  Sherwood,  29  Barb.,  383;  Andrews  v.  Gillespie,  47 
N.  Y.,  487;  Waruzer  v.  Carr,  76  N.  Y.,  526;  Ingraham  v.  Disborough,  47 
N.  Y.,  421 ;  Reeves  v.  Eamball,  40  N.  Y.,  299 ;  Kameua  v.  Huelbig,  23  N. 
J.  Eq.,  78 ;  Barney  v.  Grover,  28  Vt.,  391 ;  Kleeman  v.  Frisbie,  63  111.,  482 ; 
Ainslee  v.  Boynton,  2  Barb. ,  258 ;  Bank  v.  Fordyce,  9  Pa.  St. ,  275 ;  An- 
drews f.  McCoy,  8  Ala.,  920;  Martin  v.  Richardson,  68  N.  C,  255;  Jordan 
V.  Black,  2  Murph.  (N.  C),  30;  McKinne  v.  Rutherford,  1  Dev.  &  Bat. 
iiq.,  14;  Moody  v.  Setton,  2  Ired.  Eq.,  383;  Jeffries  v.  Evans,  6  B.  Mon., 
119;  Ragsdale  v.  Hogg,  9  Graft.,  409;  HaU  v.  Hickman,  3  Del.  Ch.,  318. 

^Fanton  v.  Fairfield  Co.  Bank,  33  Conn.,  485;  Jones  v.  Witter,  13 
Mass.,  304;  Raymonds.  Squire,  11  Johns.,  47;  Small  v.  Browder,  11  B. 
Mon.,  313;  Pollard  v.  Somerset  Mut.  Fire  Ins.  Co.,  43  Me.,  331;  Fay  i\ 
Jones,  18  Barb.,  340;  Succession  of  Risley,  11  Rob.  (La.),  298;  Noblo  u. 
Thompson  OU  Co.,  79  Pa.  St.,  354. 


KOTICE    OF   ASSIGNMENT   OF   CHOSES   IN   ACTION.  237 

§  433.  Assignment  Incomplete  Without  Notice. —  In 

one  case,  while  admittino;  that  the  weig-ht  of  American 
authority  seemed  to  favor  the  doctrine  that  the  assignment 
of  a  chose  in  action  was  complete  in  itself  and  vested  a  per- 
fect title  in  the  assignee  as  against  third  persons,  the  court 
maintained  that  the  contrary  was  the  settled  doctrine  of 
the  English  and  some  of  the  American  courts,  and  in  that 
case  chose  to  follow  the  English  as  the  more  reasonable  and 
practical  rule.^  It  was  accordingly  there  held  that  the 
assignment  of  a  cliose  in  action  was  not  complete  so  as  to 
vest  the  title  absolutely  in  the  assignee  until  notice  to  the 
debtor  of  the  assignment.  And  therefore,  as  between 
successive  purchasers  or  assignees,  he  would  be  entitled  to 
preference  who  first  gave  notice  to  the  debtor,  though  he 
held  by  an  assignment  subsequent  to  that  of  the  others.' 

§  434.  Held  Necessary  as  Against  Creditors. —  So  it 
has  been  held  that  notice  is  not  only  necessary  to  render 
such  assignment    binding    upon  the  debtor,  but   that  he 

1  Clodfelter  v.  Cox,  1  Sneed,  330.  The  English  rule,  as  gathered  from  ' 
the  following  authorities,  is  that  the  assignment  will  be  incomplete  as 
against  subsequent  assignees  without  notice.  And  that  where  there  are 
two  or  more  successive  assignees  of  the  same  chose  in  action,  the  first  to 
give  notice  vnll  have  the  prior  right :  Loveridge  v.  Cooper,  3  Euss.,  31 ; 
Meux  V.  Bell,  1  Hare,  73;  Dearie  v.  Hall,  3  Russ.,  1;  Saffron,  etc.,  Soc. 
V.  Rayner,  L.  R.,  14  Ch.  D.,  406;  Ryall  v.  Rowles,  1  Ves.  Sen.,  348;  Ex 
parte  Garrard,  L.  R.,  5  Ch.  D,,  61 ;  Addison  v.  Cox,  L.  R.,  8  Ch.,  79.  And 
this  notice  has  been  held  to  be  a  formal  matter,  which  is  not  obviated 
by  actual  knowledge  of  the  prior  assignment.  The  subsequent  assignee 
will  have  the  prior  claim  to  the  debt  or  fund,  if  he  is  fii-st  to  give  formal 
notice  to  the  debtor  or  trustee.  Edwards  v.  Martin,  L.  R.,  1  Eq.,  121; 
In  re  Brown's  Trusts,  L.  R.,  5  Eq.,  88.  But  this  position  is  not  supported 
by  the  weight  of  Enghsh  authority.  Bridge  r.Beadon,  L.  R.,  3  Eq., 
664;  Lloyd  v.  Banks,  L.  R.,  3  Ch.,  488;  In  re  Atkinson,  2  De  G.,  M,  & 
G.,  140;  Thompson  v.  Speu-s,  13  Sm.,  469;  In  re  Ban-'s  Trusts,  4  K.  & 
J.,  219;  Martin  v.  Sedgwick,  9  Beav.,  333.  Where  sinuiltaneous  notices 
are  given  by  successive  assignees,  the  order  of  priority  will  be  the  date 
of  assignment.  Lloyd  v.  Banks,  L.  R.,  3Ch.,  488;  Calisher  v.  Forbes, 
L.  R.,  7  Ch. ,  109.  See,  also,  Felthara  v.  Clark,  1  De  G.  &  Sra.,  307 ;  Lang- 
ton  V.  Horton,  1  Hare,  549. 

2  See  infra,  §  436. 


238  NOTICE   BY    WHICH    LIABILITIES    AKE    CHEATED. 

should  be  notified  in  order  to  render  the  assignment  effect- 
ual as  against  attaching  creditors.^  Thus,  if  garnishment 
be  served  upon  the  debtor,  and  he  answer  without  notice 
of  the  assignment,  and,  while  he  is  still  ignorant  of  the  trans- 
fer, judgment  is  rendered  against  him  in  favor  of  the  gar- 
nishor, he  will  be  protected  thereby  against  a  subsequent 
suit  brought  by  the  assignee.^  But  if  he  have  received 
notice,  and  fail  to  disclose  it  prior  to  judgment,  the  judg- 
ment against  him  as  garnishee  will  be  no  defense  to  the 
action  b}^  the  assignee.' 

§  435.  Object  of  Notice. —  The  object  of  requiring  notice 
of  the  assignment  of  a  clios^.  in  action  is  not,  however,  to 
affect  the  relative  rights  of  the  assignor  and  the  assignee. 
It  is  shnply  to  inform  the  debtor  that  he  is  no  longer  under 
any  pecuniary  obligation  to  his  former  creditor;  that  the 
latter  has,  by  the  assignment,  divested  himself  of  all  right 
to  the  disposition  of  the  mone}''  due,  and  invested  his  assignee 
with  that  right.*  The  declaration  of  the  rule,  therefore, 
that  notice  is  absolutely  necessary  to  perfect  the  assignment, 
must  be  understood  with  the  qualification  that  it  is  not 
necessary  in  order  to  render  the  assignment  binding  upon 
the  assignor,  but  only  to  bind  the  debtor  and  those  who 

1  Dix  V.  Cobb,  4  Mass.,  508.  But  see  Stevens  v.  Stevens,  1  Ashm.  (Pa.), 
190,  where  assignment  is  hold  good  against  attaching  creditor  if  notice 
is  given  after  garnisliment,  provided  the  garnishee  have  notice  before 
answer.     Stockton  v.  Hall,  Hard.  (Ky.),  160. 

2McCord  V.  Beatty,  12  Iowa,  299;  Richards  v.  Griggs,  16  Mo.,  416; 
Dodd  V,  Bratt,  1  Minn.,  270;  Tudor  v.  Perkins,  3  Day,  3j4. 

3Crayton  v.  Clark,  11  Ala.,  787;  Foster  v.  Wliite,  9  Port.,  221;  Lam- 
kin  V.  Phillips,  9  Port.,  98;  Colvm  v.  Rich,  3  Port.,  175;  Pitts  v.  Mower, 
18  Me..  331;  Nugent  v.  Opdike,  9  Rob.  (La.),  453;  Bunker  v.  Gilmore,  40 
Me.,  88;  Page  f .  Thompson,  43  N.  H.,  373;  Prescott  v.  Hull,  17  Johns., 
284;  Walters  v.  Wash.  Ins.  Co.,  1  Iowa,  404;  Kimbrough  v.  Davis,  34 
Ala.,  583;  Large  v.  Moore,  17  Iowa,  258.  See,  also,  Bevan  v.  Lord  Ox- 
ford, 6  De  G.,  M.  &  G.,  492;  Pickering  v.  Hfracome  R'y,  L.  R.,  3  C.  P., 
235;  Eyre  u  McDowell,  9  H.  L.  Cas.,  619;  Scott  v.  Lord  Hastings,  4  K. 
&  J.,  633;  Crow  v.  Robinson,  L.  R.,  3  C.  P.,  264;  Kinderley  v.  Jervis,  23 
Beav.,  1. 

*  Gardner  v.  Lachlin,  4  Mylne  &  Cr.,  139. 


NOTICE    OF    ASSIGNMENT   OF    CIIOSES    IN   ACTION.  239 

claim  under  him  as  creditors,'  and,  we  have  seen  it  asserted, 
innocent  purchasers  from  tlie  assignor ;  -  for  it  certainly  can- 
not be  claimed,  in  the  case  cited,  that  subsequent  assignees 
of  a  chose  in  action  who  take  the  same  with  notice  of  the 
former  assignment  can  gain  any  advantage  by  being  be- 
forehand with  the  prior  assignee  in  giving  notice  to  the 
debtor. 

§  436.  Assignee  Takes  No  More  than  Assignor  Had. — 
Whether  a  subsequent  assignee  of  a  non-negotiable  chose  in 
action  would  be  protected  in  any  event  in  his  purchase  de- 
pends somewhat  upon  the  construction  to  be  given  to  such 
assignments.  If  the  authorities  are  to  be  relied  upon  in 
this  respect,  it  may  be  safely  assumed  that  the  assignee 
takes  no  greater  right  in  the  secm-ity  assigned  than  his 
assignor  had  before  the  transfer,  and  that  the  purchaser 
takes  the  demand  subject  to  all  equities  subsisting  against 
it  in  the  hands  of  his  assignor.^  Notice  is  not  necessary  to 
divest  the  assignor  of  all  right  or  title  to  the  thing  trans- 
ferred. However  ineffectual  his  act  may  have  been  to 
clothe  his  assignee  with  the  character  of  a  creditor,  as  be- 
tween such  assignee  and  the  party  indebted,  so  as  to  oblige 
the  latter  to  recognize  the  claim,  he  has  at  least  parted  with 
his  entire  interest  in  the  debt,  and  ceased  to  have  any 
rights,  equitable  or  legal,  with  respect  thereto.  This  being 
his  status,  it  is  difficult  to  see  how  he  can  transfer  anything 
to  a  subsequent  assignee.  The  doctrine  laid  down  in  Clod- 
felter  v.  Cox*  is  unsupported  .either  by  reason  or  authority. 
It  was  not  only  unnecessary  to  a  decision  of  the  case,  but 

J  Supra,  §  434,  note. 

2Clodfelter  v.  Cox,  1  Sneed,  330. 

3 Bush  V.  Lathrop,  23  N.  Y.,  535;  Bartlett  v.  Pearson,  29  Me.,  9,  15; 
1  Pars,  on  Cont.,  227,  and  cases  cited;  Norton  v.  Kose,  2  Wash.  (Va.), 
233;  Thayer  17.  Daniels,  113  Mass.,  129;  Warren  u.  Copelin,  4  Met.,  594; 
Wood  V.  Partridge,  11  Mass.,  488;  Dix  v.  Cobb,  4  Mass.,  508;  Bohlen 
V.  Cleveland,  5  Mason,  174;  U.  S.  v.  Vaughan,  3  Binn.,  894;  Little- 
field  V.  Smith,  17  Me.,  327;  Muir  v.  Schenck,  3  Hill,  228;  Kennedy  v. 
Parke,  17  N.  J.  Eq.,  415;  Beckwith  v.  Union  Bank,  9  N.  Y.,  311. 

i  Supra,  1  Sneed,  330. 


24:0  NOTICE  BY  Vv'nicn  liadilities  ake  created. 

it  did  not  have  the  shghtest  influence  upon  the  decision,  as 
it  was  decided  in  favor  of  the  prior  assignee,  and  the  adverse 
party  claimed  in  the  capacity  of  an  attaching  creditor 
rather  than  a  subsequent  assignee,  Nevertheless,  the  En- 
glish doctrine  that,  as  between  successive  assignees,  he  who 
shall  first  give  notice  of  the  assignment  shall  prevail,  is  sup- 
ported by  numerous  American  authorities.  But  a  subsequent 
assignee,  to  gain  a  prior  right  by  service  of  notice  on  the 
debtor,  must  be  a  purchaser  in  good  faith,  and  for  a  valu- 
able consideration.' 

§  437.  By  Whom  Notice  Given  —  Manner  of  Giving  No- 
tice.—  The  notice  will,  from  the  situation  of  the  parties  and 
their  interest  in  the  event,  generally  come  from  the  assignee 
of  the  debt  or  demand.  It  is  for  his  interest  that  the  notice 
is  given.  He  is  the  party  to  be  benefited  thereby.  But  it 
is  probable  that  notice  or  knowledge  of  the  assignment, 
coming  to  the  debtor  from  any  source,  would  so  far  affect 
his  conscience  as  to  prevent  him  from  discharging  the  in- 
debtedness by  payment  to  his  original  creditor.  The  notice 
may  be  either  written  or  verbal,  provided  it  be  sufficiently 
certain  and  specific  to  inform  the  debtor  fully  of  the  assign- 
ment.- And,  when  there  are  several  joint  debtors,  a  notice 
to  one  has  been  held  notice  to  all,  in  order  to  give  the  as- 
signee a  complete  right  of  action  against  the  debtor.' 

§  438.  Knowledge  Presumed. —  Facts  and  circumstances 
sufficient  to  raise  a  presumption  of  knowledge  in  the  debtor, 

'Spain  V.  Hamilton's  Ex'rs,  1  Wall.,  604;  AVai-d  v.  Morrison,  25  Vt., 
593;  Dale  v.  Kimpton,  46  Vt.,  76;  Loomis  v.  Loomis,  26  Vt.,  198;  Barney 
V.  Douglas,  19  Vt.,  98;  BaiTon  v.  Porter,  44  Vt.,  587;  Foster  v.  Mix, 
20  Conn.,  395;  Bishop  v.  Holcomb,  10  Conn.,  444;  Van  Buskirk  v.  Hart- 
ford, etc.,  Ins.  Co.,  14 Conn.,  141 ;  Adams u.  Leavery,  20  Conn.,  72;  Judah 
V.  Judd,  5  Day,  534;  Woodbridge  v.  Perkins,  3  Day,  364;  HaiTop  v. 
Landers,  etc.,  Co.,  45  Conn.,  561;  Dews  v.  OleviU,  3  Baxt.,  432;  Flickey 
V.  Loney,  4  Baxt.,  169;  Hobson  v.  Stevenson,  1  Term.  Ch.,  208.  See 
Murdock  v.  Finney,  21  Mo.,  138;  Gayoso  Sav.  Inst.  v.  Fellows,  6  Coldw., 
467 ;  McWilliams  v.  Webb,  32  Iowa,  577. 

■^  Brown  v.  Savage,  4  Drew,  635;  In  re  Tichnor,  35  Beav.,  817. 

•iTimson  v.  Ramsbottom,  2  Keen,  35;  Ex  parte  Rogers,  8  De  G.,  M.  & 
G.,  27;  Wise  v.  Wise,  2  Jones  &  L.,  403. 


NOTICE   OF   ASSIGNMENT   OF   CHOSES    IN   ACTION.  241 

of  the  assignment  of  the  debt,  have  been  held  to  amount  to 
notice  by  which  he  would  be  estopped  from  the  acquisition 
of  a  defense  against  the  same,  subsequent  to  his  knowledge 
of  such  facts.'  Here  the  doctrine  was  distinctly  recognized, 
that  after  the  assignment,  whether  notice  had  been  given  or 
not,  the  assignor  had  no  more  poAver  over  the  chose  in  ac- 
tion than  a  mere  stranger.  But  the  subject  of  the  assign- 
ment, being  in  the  shape  of  a  note,  which  was  transferred 
Avithout  indorsement,  and  for  that  reason  subject  to  equities, 
knowledge  of  the  fact  that  such  note  was  in  the  hands  of 
the  assignee  was  held  sufficient  to  raise  a  presumption  that 
the  maker  had  notice  of  the  assignment  from  the  time  he 
knew  of  such  possession.-  But  it  has  been  held,  on  the 
other  hand,  that  merely  putting  a  letter  in  the  postoffice, 
directed  to  the  debtor,  and  containing  a  notice  of  the  as- 
signment, would  not  be  sufficient  to  vest  such  title  to  a  note 
thus  assigned  in  the  assignee  as  would  enable  him  to  main- 
tain an  action  thereon  against  the  debtor,  where  the  letter 
containing  the  notice  was  never  received  by  the  party  to 
w^hom  it  was  addressed.^ 

§  439.  Put  Upon  Inquiry. —  But  where  the  assignor  of  a 
warehouse  receipt  was  in  possession  of  sufficient  notice  to 
put  him  on  inquiry  which  would  have  led  to  a  knowledge 
of  its  fraudulent  issue,  not  only  would  he  be  affected  with 
full  knowledge  of  the  taint,  but  an  equity  in  favor  of  the 
true  owner  of  the  goods  stored  would  attach  to  the  receipt 
and  follow  it  into  the  hands  of  the  assignee,  who  would  hold 
the  same  subject  to  all  such  equities  as  his  assignor  had  re- 
ceived notice  of  prior  to  notice  of  the  assignment.* 

iHackettr.  Martin,  8  Me.,  77. 

2 Id.,  79;  Ellis  v.  Kreutzinger,  27  Mo.,  311;  Wells  v.  Archer,  11  S.  & 
R.,  413;  Aucher  u.  Bank  of  England,  Dougl,,  637.  But  see  Cahoon  i'. 
Morgan,  38  Vt.,  234,  where  it  is  held  that  a  demand  from  the  assignee  is 
not  sufl&cient  notice. 

3  Judah  V.  Judd,  5  Day,  534. 

*  Commercial  Bank  of  Rochester  v.  Colt,  15  Barb.,  506.    See  Smith  v. 
Smith,  2  Cr.  &  M.,  Exch.,  231,  where  information  in  course  of  casual  con- 
versation was  held  sufficient. 
16 


242  KOTicE  BY  wiiicn  liabilities  are  created. 

§  440.  Double  Purpose  of  Notice  —  Laches  of  tlie  As- 
signee.—  It  will  be  observed  that  this  notice  serves  a  double 
}3urpose.  It  is  not  only  intended  to  affect  the  debtor  so  as 
to  cut  off  subsequently-acquired  defenses  against  the  as- 
signor, but  it  is  to  inform  such  debtor  of  his  hability  to  the 
assignee.  When  the  latter  demands  payment,  he  ought  to 
be  prepared,  not  only  to  give  such  notice  as  would  suffice  to 
prevent  payment  to  the  assignor,  but  to  satisfy  the  debtor 
of  the  reality  of  the  transaction,  so  that  he  could  have  no 
reason  to  doubt  it.'  Independent  of  the  technical  necessity 
of  notice  to  the  debtor,  the  assignee  may,  by  his  negligence, 
lose  the  advantage  of  priority  gained  over  subsequent 
assignees.-  Xotice  to  the  custodian  of  chattels  of  their 
transfer  to  another  has  also  been  held  equivalent  to  de- 
livery.' 

§  441.  Overdue  Bills. —  The  rule  requiring  notice  to  the 
debtor  of  the  assignment  of  a  demand  in  favor  of  his  cred- 
itor, in  order  to  create  a  liability  as  betAveen  him  and  the 
assignee,  is  not  confined  to  such  as  do  not  belong  to  the 
class  Imown  as  negotiable  instruments.  It  applies  to  all 
such  instruments  as  bear  on  their  faces  the  evidence  of  dis- 
honor. A  note  or  bill  which  is  past  due  and  unpaid  will 
be  subject,  in  the  hands  of  an  assignee,  until  the  debtor  is 
notified  of  the  assignment,  to  the  same  equities  as  would 
have  affected  it  in  the  hands  of  the  party  from  whom  it  was 
received.^ 

§  442.  Negotiable  Paper  Without  Indorsement. —  And 
even  negotiable  paper,  assigned  before  maturity,  will  be 
subject  to  the  same  rule  when  it  passes  otherwise  than  by 

'Davenport  i\  Woodbridge,  8  Me.,  17;  Johnson  v.  Bloodgood,  1 
Jolms.  Cos.,  51;  Bean  v.  Simpson,  16  Me.,  49;  ^Vnderson  v.  Van  Allen, 
12  Johns.,  343. 

2Fraley's  Appeal,  76  Pa.  St.,  42;  Fisher  v.  Knox,  13  Pa.  St.,  622; 
Mercantile  Ins.  Co.  v.  Corcoran,  1  Gray,  75;  Judson  v.  Corcoran,  17 
How.,  612;  Richards  I'.  Griggs,  16  Mo.,  416;  Pinkerton  v.  Manchester, 
etc.,  R.  Co.,  42  N.  H.,  424. 

3Lu£kins  v.  Collins  (Idaho),  6  West  Coast  Rep.,  594. 

*  Story  on  Prom.  Notes,  §  190,  and  cases  cited. 


NOTICE   OF   ASSIGNMENT   OF   CHOSES   IN   ACTION.  243 

indorsement.  It  is  not,  therefore,  the  essential  character  of 
the  demand  assigned  Avhich  renders  notice  necessary,  so 
much  as  the  manner  in  which  the  title  thereto  is  transferred. 
When  the  Avritten  evidence  of  indebtedness  is  non-nego- 
tiable or  overdue,  indorsement  will  not  obviate  the  necessity 
of  notice ;  but  when  negotiable  paper  requiring  indorsement 
is  assigned  by  delivery,  notice  has  been  held  necessary  to 
perfect  the  assignment.^ 

§  443.  Balance  Due  on  Account. —  Another  class  of 
claims  which  are  subject  to  the  rule  as  to  notice,  and  which 
frequently  call  for  its  application,  are  such  as  grow  out  of 
mutual  dealings  between  the  original  parties.  In  such  cases 
a  balance  due  one  of  the  parties  may  be  assigned,  so  as  to 
give  the  assignee  the  same  rights  with  respect  thereto  as 
possessed  b}'  the  assignor  at  the  time  the  balance  was 
struck;  but  should  the  account  be  kept  open,  the  party 
against  whom  the  balance  is  claimed  will  be  entitled  to  re- 
duce the  demand  by  credits  in  his  favor  as  against  the 
assignor,  until  notified  of  the  assignment,  but  no  longer.- 

§  44:4:.  Policies  of  Insurance.— A  class  of  claims  Avhich 
frequently  become  the  subject  of  assignment,  either  abso- 
lutely or  as  security  for  debt,  are  policies  of  insurance. 
These  are  peculiarly  affected  by  the  want  of  notice,  as  well 
on  account  of  the  stipulations  in  the  policy  as  by  reason  of 
some  points  of  essential  difference  between  contracts  of  this 
kind  and  those  of  a  more  general  character.  Where,  by 
the  terms  of  the  policy,  the  assured  is  required  to  give  notice 
of  its  assignment,  together  with  the  transfer  of  the  insured 
property,  in  order  to  save  the  policy  from  forfeiture,  there 
is  a  stronger  reason  for  enforcing  this  condition  against  the 
assignee  than  exists  with  reference  to  ordinary  assignable 
contracts.  The  obligation  assumed  by  the  insurer  to  indem- 
nify the  assured  against  loss  is,  to  a  considerable  extent, 
personal  in  its  character.     It  is  an  obligation  he  might  be 

'Hackettr.  Martin,  8  Me.,  77;  Matthews  v.  Houghton,  10  Me.,  420; 
Jones  V.  Witter,  13  Mass.,  304. 
2Bartlett  v.  Pearson,  29  Me.,  9. 


244  NOTICE   BY   WHICH   LIABILITIES    AKE    CREATED. 

willing  to  assume  in  favor  of  one  person,  while  if  the  in- 
demnity were  in  favor  of  a  different  person,  the  risk  might, 
in  the  estimation  of  the  insm-er,  be  considerably  enhanced,' 
§  445.  Notice  to  Insurer. —  ISTotice  to  the  insm-er  of  the 
mortgage  of  the  insured  property,  and  the  assignment  of 
the  mortgagor's  interest  in  the  policy  to  the  mortgagee,  is 
required,  in  order  that  the  party  liable  may  be  fully  advised 
as  to  who  has  an  interest  in  the  indemnity.  But  while  such 
notice,  as  in  other  cases  of  assignment,  may  suffice  to  pre- 
vent the  pa}Tnent  of  the  loss,  should  one  occur,  to  the 
assured,  regardless  of  the  rights  of  his  assignee,  it  will  not 
prevent  a  subsequent  forfeiture  of  the  policy,  by  a  breach 
of  its  essential  conditions  on  the  part  of  the  mortgagor.^ 

§  4:4:0.  Conditions  of  Policy.— So  where  the  owner  of  a 
vessel  procured  insurance  thereon  and  assigned  the  policy 
to  a  mortgagee,  with  the  assent  of  the  insurer,  it  was  held 
that  the  assignee  took  subject  to  all  the  conditions  of  the 
pohcy,  and  a  subsequent  over-insurance  by  the  mortgagor 
would  render  the  first  policy  void,  this  being  one  of  the 
conditions  upon  which  it  was  issued.^ 

§  447.  Assignment  of  Subject  of  Insurance. —  But  in 
a  case  of  insurance  where  one  of  the  conditions  of  the  pol- 
icy was  that,  in  case  the  interest  in  the  property  of  the 
insured  was  conveyed  without  the  consent  of  the  insurer, 
the  policy  should  thereby  be  rendered  void,  it  was  held  that 
such  forfeiture  should  not  aflPect  the  insurance  upon  an  in- 
terest previously  conveyed  or  assigned  with  the  consent  of 
the  insurer.* 

§  448.  By  Retiring  Partners. —  Where  the  terms  of  the  ' 
pohcy  prohibit  an  assignment  without  notice,  an  assignment 
by  the  retiring  member  of  a  partnership,  to  his  late  co- 

iHobbs  V.  Memphis  Ins.  Co.,  1  Sneed,  444. 

2Grosvenor  v.  Atlantic  Fire  Ins.  Co.,  17  N.  Y.,  391. 

'  Bufifalo  Steam  Engine  Works  v.  Sun  Mutual  Ins.  Co.,  17  N.  Y.,  401 ; 
State  Mutual  Fire  Ins.  Co.  v.  Eoberts,  31  Pa.  St.,  438.  Contra,  sco 
Traders'  Ins.  Co.  v.  Eoberts,  9  Wend.,  404 

*  Boynton  v.  Clinton  &  Essex  Insurance  Co.,  16  Barb.,  254. 


NOTICE   OF   ASSIGNMENT   OF   CHOSES   IN   ACTION.  245 

partner,  is  equally  within  the  terms  of  the  prohibition  as 
though  it  had  been  made  to  a  stranger.^ 

§  449.  Notice  May  be  Implied. —  Notice  of  the  assign- 
ment of  an  insurance  policy,  or  of  an  interest  in  the  subject 
of  insurance,  need  not  be  express.  It  may,  like  any  other 
fact,  be  inferred  from  other  facts  and  circumstances.  So, 
where  a  retiring  partner  assigned  his  interest  to  his  co- 
partner, who  continued  the  payment  of  the  premiums  to 
the  agent  of  the  insurer  for  four  years  after  such  assign- 
ment, these  facts  were  held  to  be  competent  evidence  from 
which  the  jury  might  draw  the  inference  that  the  assign- 
ment was  known  to  the  insurer  when  the  premiums  were 
received,  and  such  knowledge  would  dispense  with  any 
formal  notice.^ 

§  450.  Assigument  After  Loss. —  An  assignment  of  a 
policy  of  insurance,  without  notice  of  such  assignment  to 
the  insurer,  does  not  always  work  a  forfeiture  of  the  inter- 
est in  the  policy.  This  is  probabl}^  true  of  all  policies  after 
the  occurrence  of  the  loss  by  which  the  demand  is  ren- 
dered absolute  and  unconditional.  But  notice  of  assign- 
ment after  loss  would  be  required  for  substantially  the 
same  reasons  as  apply  to  the  assignment  of  other  things  in 
action.  It  has  been  held  that  the  assignment  of  a  policy 
by  the  assured,  without  notice  to  the  insurer,  left  the  pro- 
ceeds of  the  policy  subject  to  the  order  and  disposition  of 
the  insured,  and  upon  his  becoming  bankrupt,  the  same 
went  to  his  assignees.' 

1  Buckley  v.  Garrett,  47  Pa.  St.,  204. 

Ubid. 

3  In  re  Colville,  1  Montag.,  110. 


24G  NOTICE   BY    WHICH    LIABILITIES    ARE   CEEATED. 


lY.    ]^OTICE   TO   CaKEIEKS   AND    OtHEE    BaILEES. 

§  451.  Division  of  the  Subject. 

452.  Notice  of  Goods  Delivered  for  Carriage. 

453.  Deposited  at  "Wliai-f  or  Left  at  Receiving  House. 

454.  When  Notice  Necessary. 

455.  DeUveiy  Pursuant  to  Understanding. 

456.  DeUvery  on  Private  Wharf. 

457.  Stoppage  in  Transitu. 

458.  Inquuy  Confined  to  Effect  Upon  Carriers. 

459.  Time  of  Giving  Notice. 

460.  During  Transit. 

461.  Before  Ai-rival  and  Demand. 

462.  Concurrent  Facts. 

463.  Effect  of  Notice. 

464.  End  of  Transit  us  by  Delivery. 

465.  Fact  of  Dehvery  Determined  by  Intent. 

466.  Consignee's  Possession  Ends  Transit. 

467.  Views  of  Chancellor  Kent. 

468.  Carrier  Discharged  by  Notice  at  End  of  Journey. 

469.  Storage  in  Government  Warehouse. 

470.  Notice  to  Employer. 

471.  Eesponsibility  of  Carrier. 

472.  Effect  of  Assigning  BUI  of  Lading. 

473.  Must  be  to  Bona  Fide  Purchaser. 

474.  End  of  Transit  by  Interception. 

475.  Pi-ef  erred  to  Judgment  Creditor. 

476.  By  Whom  Given. 

477.  By  Factor. 

478.  By  Party  to  Contract  Respecting  the  Groods. 

479.  By  Owner's  Guarantor. 

480.  By  Agent. 

480fl.  Notice  of  Facts  Requh-ing  Extra  Care. 
480b.  Notice  of  Loss  by  Shij)pers. 

§  4:51.  Division  of  tlie  Subject. —  The  matter  in  respect 
to  wMch  notice  affects  carriers  and  otlier  bailees  for  hire, 
so  as  to  create  habUities  in  favor  of  others  and  against 
them,  has  reference :  1.  To  the  dehvery  of  the  goods,  wares 
and  merchandise  to  be  carried,  or  the  things  committed  to 
their  charge.  2.  Xotice  of  rights  of  others  in  conflict  with 
those  of  consignees.  3.  Notice  of  facts  imposing  the  duty 
of  extraordinary  care.    4.  Notice  of  loss  by  shipper. 


NOTICE   TO    CAEKIEES    AND    OTHER   BAILEES.  247 

§  452.  Notice  of  Goods  Delivered  to  Carrier. —  Circum- 
stances beyond  the  control  of  the  consignor  or  bailor  may 
prevent  such  a  direct  or  personal  delivery  of  the  things 
bailed,  into  the  possession  of  the  bailee,  as  to  render  it  cer- 
tain beyond  a  doubt  that  they  are  actually  received.  The 
employment  of  inadequate  means  and  facilities  for  storage 
or  handUng  of  the  goods,  or  incompetent  or  dishonest 
agents  or  servants,  may  render  it  extremely  inconvenient, 
or  even  impossible,  for  the  bailor  to  deliver  the  things  when 
and  where  the  other  party  is  prepared  to  take  them  into 
his  possession  and  receipt  for  them,  so  that  there  will  be  no 
room  to  doubt  the  completion  of  the  transaction  and  the 
perfection  of  the  bailee's  liability.  This  branch  of  the  law 
is  practically  applied  almost  exclusively  to  the  liability  as- 
sumed by  carriers ;  but  as,  under  the  same  circumstances, 
substantially  the  same  rule  would  govern  other  bailees  for 
hire,  the  principles  here  enunciated  will  be  understood  to 
apply  in  a  general  way  to  all  cases  of  bailment. 

§  453.  Deposited  at  Wharf. —  When  goods  are  deposited 
for  transportation  at  a  public  wharf,  where  there  is  no  one 
acting  on  behalf  of  the  carrier  to  receive  them,  and  there 
has  been  no  previous  arrangement  with  the  carrier  that 
leaving  them  at  such  place  shall  be  treated  as  equivalent  to 
a  delivery,  in  order  to  render  the  carrier  liable,  as  such,  for 
the  goods,  he  should  have  notice  that  they  Avere  left  at  the 
wharf  for  the  purpose  of  being  transported  by  the  carrier 
notified.'  But  when  the  articles  were  shown  to  have  been 
left  at  a  receiving  house,  where  the  carrier  was  accustomed 
to  receive  parcels,  and  were  delivered  to  some  one  in  charge 
of  the  house,  this  was  held  to  be  the  legal  equivalent  of 
actual  personal  deliver}'-  to  the  carrier  himself,  and  the  time 
of  so  leaving  the  goods  would  be  the  date  of  the  inception 
of  the  carrier's  liability.^ 

§  454.  Wlien  Notice  Necessary. —  When,  however,  from 
the  circumstances  surrounding  the  transaction,  it  is  adjudged 

1  Buckman  v.  Levi,  3  Camp.,  414. 

2Burre]l  v.  North,  2  Carr.  &  K.,  680 ;  Packard  v.  Getman,  6  Cow.,  757. 


248  NOTICE    BY    WlllCli    LIABILITIES    ARE    CREATED. 

necessary  to .  give  notice  to  the  carrier  that  the  articles 
have  been  left  for  him  at  some  public  place,  as  a  wharf  or 
landing-,  unless  the  bailor  has  done  so  in  conformity  to  some 
established  custom  of  the  carrier,  or  a  previous  direction 
from  him,  either  express  or  implied,  such  carrier  may  refuse 
to  accept  the  goods  at  that  place.  It  is  only  when  the  car- 
rier, upon  receiving  notice,  expressly  or  tacitly  assents  to  such 
delivery,  that  such  notice  operates  to  create  a  liabihty  to 
the  bailor,  by  which  the  carrier  would  become  responsible 
for  the  articles  delivered.^  Where  a  person,  after  engaging 
passage  on  a  boat,  left  his  baggage  on  the  boat,  and  it 
was  stolen,  it  was  held  that  he  could  recover  for  his  loss.^ 
But  for  a  trunk  so  left  by  one  who  had  neither  engaged 
passage  nor  given  notice  of  his  intention  to  do  so,  the  owner 
could  not  recover  as  for  want  of  care  of  baggage.* 

§455.  Delivery  Pursuant  to  Understanding. —  As  the 
carrier  will  be  bound,  without  express  notice,  by  a  delivery 
at  the  place  indicated  by  custom  for  receiving  articles  for 
transportation,^  by  a  much  stronger  reason  would  his  re- 
sponsibility arise  from  a  deposit  at  a  place  where  he  had 
agreed  to  receive  freight.  Such  deposit  has  been  held  to  be 
implied  notice  in  itself,  and  sufficient  to  fix  the  carrier's 
liability.^ 

§  456.  Delivery  on  Private  Wharf. —  A  delivery  of 
property  for  transportation  on  the  private  dock  or  wharf  of 
the  carrier,  used  exclusively  by  himself,  would  be  considered 
as  a  personal  delivery  to  the  carrier,  and  therefore  would 
not  require  notice  in  order  to  render  such  carrier  liable  from 
the  time  of  the  delivery.^ 

^Ibicl.;  Buckman  V.  Levi,  3  Camp.,  414;  Green  v.  The  Eaili-oad,  41 
Iowa,  410. 

2  Woods  V.  Devin,  13  Til,  746. 

3Wriglit  V.  Caldwell,  3  Mich.,  51. 

^Burrell  v.  North,  3  Carr.  &  K.,  680. 

SMerriam  v.  H.  &  N.  H.  R.  R.  Co.,  20  Conn.,  854;  lU.  Cent.  R.  Co.  v. 
Ashmead,  58  111.,  487;  HI.  Cent.  R.  Co.  v.  Hornberger,  77  111.,  457;  lU, 
Cent.  R.  Co.  v.  McClellan,  54  111.,  58. 

BMerriam  v.  H.  &  N.  H.  R.  R.  Co.,  20  Conn.,  354. 


NOTICE    TO    CAKEIERS    AND    OTHER   BAILEES.  249 

§457.  Stoppage  in  Transitu. —  The  principal  circum- 
stance calling  for  notice  to  carriers,  or  other  bailees,  of 
rights  to  the  thing  bailed,  adverse  to  those  of  consignee,  is 
where  the  goods  or  merchandise  carried  is  stopped  in 
transitu  by  the  vendor.  The  event  which  calls  for  the  ex- 
ercise of  the  vendor's  right  of  stoppage  in  transitu  is  when 
the  goods  purchased  have  not  been  paid  for,  and  the  pur- 
chaser has  become  insolvent.'  The  usual  manner  of  stop- 
j)age  is  by  a  countermand  to  the  carrier  while  the  goods  are 
still,  in  contemplation  of  law,  in  transit ;  but  this  seems  not 
indispensable  to  the  main  purpose  for  which  the  right  is 
asserted.  The  object  of  such  countermand  is  not  merely  to 
atfect  the  carrier  with  notice  of  the  right  asserted,  and  thus 
implicate  him,  upon  his  refusal  to  comply.  The  chief  end 
to  be  attained  is  to  affect  the  consignee  with  notice  through 
the  carrier,  and  this  may  in  some  instances  be  accomplished 
by  an  open  and  notorious  assertion  of  the  right  of  reclama- 
tion in  any  other  form.  A  countermand  of  the  consignee's 
right  to  receive  the  goods  will  have  the  same  effect  to  pre- 
vent the  loss  of  the  vendor's  right  of  stoppage  in  transitu^ 
as  though  the  carrier  were  notified  not  to  deliver  them.^  As, 
in  the  case  cited,  where  the  bills  drawn  against  the  shipment 
were  protested,  and  the  consignor  notified  the  assignees  of 
the  consignee  of  the  fact,  and  proposed  that  they  should 
either  be  delivered  to  his  own  agent  to  await  the  fate  of 
the  bills,  or  that  the  assignee  should  keep  a  separate  account 
of  sales,  and,  in  the  event  of  the  acceptance  of  the  latter 
alternative,  prospectively  demanded  the  proceeds  as  his  prop- 
erty, this  was  held  a  distinct  enunciation  of  the  vendor's 
right  of  stoppage,  and  was  therefore  sufficient  to  bind  the 
assignee.' 

1  Benj.  on  Sales,  §§  766,  837. 

^BeU  V.  Moss,  5  Whart.,  189. 

3  The  vendor's  right  of  stoppage  does  not  depend  upon  his  having  given 
formal  notice,  as  he  may  have  his  action  to  recover  the  goods  in  the  first 
instance.  Reynolds  v.  The  Railroad,  43  N.  H.,  580;  Newhall  v.  Vargas, 
13  Me.,  93;  Howe  v.  Stewart,  40  Vt.,  145;  O'Brien  v.  Norris,  16  Md., 
132;  Thompson  v.  The  Raih-oad,  28  Md.,  396;  Jones  v.  Earl,  37  Cal.,  630. 


250  NOTICE   BY   WHICH   LIABILITIES   ABE   CREATED. 

§  458.  Iiuiuiry  (Jonfined  to  Effect  Ipon  Carriers. —  But 

how  interesting  and  profitable  soever  a  general  inquiry  into 
the  origin,  nature  and  objects  of  this  important  right,  which 
is  recognized  by  all  commercial  peoples,  might  prove,  it  is 
only  intended  here  to  present  so  much  as  affects  the  carrier 
in  whose  hands  the  goods  are  sto])ped  at  the  instance  of  the 
vendor.  Anything  more  than  this  would  be  beyond  the 
legitimate  scope  of  a  work  of  this  kind. 

§  459.  Time  of  Giving  Notice. —  One  of  the  most  impor- 
tant matters  for  consideration  in  connection  with  this  sub- 
ject is  the  question,  when,  in  the  com^se  of  the  shipment, 
must  the  notice  be  given,  in  order  to  fix  the  hability  of  the 
carrier  to  the  consignor  or  vendor?  It  is  not  a  sufficient 
answer  to  this  to  say  that  it  should  be  before  the  arrival  of 
the  goods  at  their  destination,  nor  even  that  it  should  be 
prior  to  the  delivery.  It  may  be  given  after  tlieir  arrival 
at  the  place  were  they  are  to  be  delivered,  and  the  right  of 
stoppage  may  be  lost  before  their  actual  delivery  to  the 
consignee.^ ' 

§  460.  During  Transit. —  It  may  be  laid  down  as  a  gen- 
eral rule,  that  notice  to  a  carrier  of  the  vendor's  intention  to 
reclaim,  by  a  countermand  of  the  order  for  the  delivery  of 
the  goods  shipped,  Avill  be  in  time,  if  given  while  the  goods 
are  still  in  transit.-  This  requires  a  determination  of  the 
question,  when  does  the  transit  cease?  Certainly  not  in 
every  instance  with  the  end  of  the  voyage.  It  cannot  prop- 
erly be  said  to  continue  merely  during  the  time  intermediate 
between  the  actual  commencement  of  the  journey  from  the 
place  where  the  goods  are  sold,  to  the  place  where  they  are 
to  be  delivered.  Such  a  construction  would  exclude  all  the 
time  intervening  between  the  delivery  of  the  goods  to 
the  carrier,  and  their  actual  departure,  as  well  as  the'  time 
subsequent  to  their  arrival,  and  prior  to  acceptance  by  the 
consignee.  It  may  be  said,  therefore,  that  the  goods  are  in 
transit,  and  subject  to  the  right  of  stoppage  in  transitu, 

iMottram  v.  Heyer,  5  Den.,  G29.    See,  also,  cases  cited  infra, 
-  Infra. 


NOTICE   TO   CAHEIEES   AND   OTHER   BAILEES.  251 

from  the  time  the  carrier  becomes  charged  with  their  pos- 
session, until  his  liabiKty  as  carrier  terminates.^ 

§461.  Before  Arrival  and  Demand. —  In  accordance 
Avith  this  view  it  has  been  held  that  the  notice  to  the  carrier 
must  be  before  the  arrival  of  the  goods  at  their  destination 
and  a  demand  therefor  by  the  consignee  or  his  legal  repre- 
sentative.^ 

§  462.  Concurrent  Facts. —  The  doctrine  that,  in  order 
to  defeat  the  right  of  stoppage  m  transitu,  the  arrival  at 
the  place  of  destination  and  the  demand  by  the  consignee 
must  be  concurrent  facts,  though  not  fully  settled,  is  well 
illustrated  by  the  case  of  Hoist  v.  Pownal.^  It  was  there 
laid  down  by  Lord  Kenyon,  that,  in  order  to  give  the  con- 
signee a  right  to  claim  by  virtue  of  possession,  it  should  be 
a  possession  obtained  by  him  on  the  completion  of  the  voy- 
age, and  that,  in  that  case,  the  voyage  was  not  completed 
until  the  carrier  had  performed  quarantine.  In  this  opinion 
the  court  of  king's  bench  concurred,  and  the  verdict  was  en- 
tered up  for  plaintiff,  the  vendor,  whose  agent  had  claimed 
the  cargo  before  the  completion  of  the  quarantine,  notwith 
standing  the  consignee's  prior  possession ;  but  perhaps  the 
Aveight  of  authority  is  in  favor  of  the  right  of  the  vendee  to 
anticipate  the  termination  of  the  voyage  at  any  point,  and, 
by  obtaining  possession,  put  at  end  to  the  .transitus}  But 
this  has  been  qualified  by  the  provision  that  the  interrup- 
tion of  the  transit  by  the  purchaser  shall  be  in  good  faith.'^ 

§463.  Eflfect  of  Notice.— From  the  foregoing  it  Avill 
appear  that  the  notice  of  stoppage  given  to  the  carrier  is 
not  only  sufficient  to  fix  his  liability,  as  for  conversion  of 
the  goods,  in  case  he  aUows  them  to  be  taken  while  the 

1  Infra. 

2  Bird  V.  Brown,  14  Jur.,  132. 

3  1Esp.,  240. 

*  Wliiteliead  v.  Anderson,  9  M.  &  W.,  518;  Lond.  &  N.  W.  R.  Co.  v. 
Bartlett,  7  H.  &  N.,  400:  Wood  v.  Yeatman,  15  B.  Mou.,  270;  Foster  v. 
Frampton,  6  B.  &  C,  107;  Molir  v.  Boston  &  Albany  R.  R.  Co.,  106 
Mass.,  67. 

5  Mohr  V.  B.  &  A.  R.  R.  Co. ,  siipra. 


252  NOTICE   BY    WHICH    LIABILITIES    ARE   CREATED. 

seller's  right  of  control  remains  intact,  but  that  it  is  suflS- 
cient  to  vest  the  right  of  possession  in  the  original  owner, 
so  that  he  may  reclaim  the  goods  from  an  insolvent  or 
bankrupt  consignee  or  his  assignees/  The  possession  ob- 
tained by  the  consignee,  in  order  to  work  a  complete  di- 
vestiture of  the  seller's  rights  with  respect  to  the  property, 
if  not  required  to  be  regular,  in  the  sense  that  it  is  acquired 
at  the  end  of  the  voyage,  should  at  least  be  rightful,  in  the 
sense  that  it  was  obtained  with  the  seller's  consent  and  not 
against  his  protest.  Thus,  w^here  the  notice  was  given  the 
owners  of  canal  boats  at  one  of  the  termini  of  the  route,  and 
in  transmitting  instructions,  pursuant  to  such  notice,  to  the 
place  of  destination,  a  mistake  was  made  by  the  carrier  in 
the  names  of  the  consignees,  this  was  held  not  to  affect  the 
seller's  right  of  reclamation,  after  the  goods  had,  in  conse- 
quence of  the  mistake,  been  delivered  to  the  purchaser,  the 
notice  having  been  given  before  the  transit  was  completed.^ 
§  464.  End  of  Transitus  by  Delivery.— In  many  of  the 
cases  the  transitus  is  held  to  be  at  an  end  only  with  the  de- 
livery of  the  goods  to  the  consignee,  his  agents  or  repre- 
sentatives.' And  in  order  to  avoid  the  consequences  of 
following  this  rule  strictly  in  certain  cases,  where  it  seemed 
that  actual  delivery  should  not  be  required,  the  doctrine  of 
constructive  delivery  is  resorted  to.*  "While  in  Bird  v. 
Brown,^  it  is  maintained  with  a  fair  show  of  reason  that  the 
transitus  may  be  ended  without  delivery  either  actual  or 
constructive,  by  a  simple  demand  for  the  goods  by  the  pur- 
chaser or  his  representatives,  although  possession  is  tor- 
tiously  withheld  by  the  carrier,  and  that  a  subsequent  notice 

iWliite  V.Welsh,  38  Pa.  St.,  396;  O'Neil  v.  Garrett,  6  Iowa,  480; 
Rowley  v.  Bigelow,  13  Pick.,  307. 

-Litt  V.  Cowley,  7  Taunt.,  169;  Bell  v.  Moss,  5  Wliart.,  189. 

3  Foster  v.  Frampton,  6  Barn.  &  Cres.,  107;  Buckley  v.  Furniss,  15 
Wend.,  137;  Seymour  v.  Newton,  105  Mass.,  272;  Sawyer  v.  JosUn,  20 
Vt.,  172;  NewhaU  v.  Vargas,  18  Me.,  93;  Hays  v.  MoniUe,  14  Pa.  St.,  48; 
Aguirre  v.  Parmelee,  22  Conn.,  473. 

*  Jordon  v.  James,  5  Ohio,  98 ;  Sawyer  v.  Joslin,  20  Vt.,  173. 

^Ante,  %  461. 


NOTICE    TO    CAKEIEES    AND    OTHER    BAILEES.  253 

of  stoppage  would  not  be  effectual.'  But  even  where  this 
is  accepted  as  the  correct  doctrine,  it  must  be  qualified  by 
the  provision  that  nothing  further  remains  to  be  done  be- 
fore the  notice  of  stoppage,  in  order  to  entitle  the  purchaser 
to  the  possession  of  the  goods.  Thus,  where  the  buyer  hav- 
ing become  bankrupt  after  the  purchase  and  before  the 
arrival  of  the  goods,  his  assignee  demanded  them  and  went 
on  board  the  vessel  and  laid  his  hands  upon  a  portion  of 
the  articles  purchased,  and  the  master  of  the  vessel  promised 
to  deliver  them  when  he  was  satisfied  as  to  his  freight.  Be- 
fore the  freight  was  paid  the  vendor  went  on  board  and 
gave  notice  of  stoppage  to  the  officer  in  charge,  and  it  was 
held  that,  as  the  master  had  not  contracted  to  hold  as  the 
agent  of  the  assignee,  the  transitus  was  not  ended  and  the 
notice  of  stoppage  Avas  sufficient.-  But  it  has  been  strongly 
intimated  that  the  mere  non-payment  of  the  freight,  where 
the  goods  are  held  subject  to  the  orders  of  the  consignee 
and  to  be  delivered  upon  payment,  will  not  render  the  goods 
liable  to  stoppage  in  transitu} 

§  405.  Fact  of  Delivery  Determined  by  Intent. —  The 
conflict  of  authority  is  too  decided  to  admit  of  the  deduc- 
tion of  a  rule  as  to  what  acts  on  the  part  of  the  purchaser, 
without  the  concurrence  of  the  carrier,  will  suffice  to  cut 
off  the  vendor's  right  of  stoppage.  But  it  is  quite  clear 
that  where  possession,  actual  or  constructive,  is  required, 
the  fact  must  be  determined  by  the  manifest  intent  of  the 
parties  with  respect  to  the  property,  and  their  conduct  must 
be  interpreted  by  what  it  was  meant  to  signify  in  each  par- 

iSecomb  v.  Nutt,  14  B.  Mon.,  324;  London,  etc.,  R'y  v.  Bartlett,  7  H. 
&  N.,  400;  Turner  v.  The  Liverpool  Dock  Ti-'s,  6  Exch.,  543;  Stubbs  v. 
Lund,  7  Mass.,  453;  Holbrook  v.  Vose,  6  Bosw.,  76. 

2  Whitehead  v.  Anderson,  9  M.  &  W.,  518.  See,  also,  Calahanr.  Bab- 
cock,  21  Ohio  St.,  281;  Guilford  v.  Smith,  30  Vt.,  49;  Blackb.  on  Sales, 
259;  Benj.  on  Sales,  §  855;  Jackson  v.  Nichol,  5  Bing.  N.  C,  508;  Mc- 
Fetridge  v.  Piper,  40  la.,  627 ;  Buckley  v.  Furniss,  15  Wend.,  137 ;  Cabeen 
V.  Campbell,  30  Pa.  St.,  254;  Hams  v.  Pratt,  17  N.  Y.,  249;  Allen  v. 
Mercier,  1  Ash.,  103. 

3  Whitehead  v.  Anderson,  supra. 


254r  NOTICE   BY    WHICH    LIABILITIES   AEE   CREATED. 

ticular  case,  rather  than  by  the  construction  placed  upon 
similar  acts  in  other  cases  where  the  intention  may  have 
been  quite  different.'  The  intention  of  the  insolvent  pur- 
chaser not  to  accept  was  held  to  control,  although  such 
intent  was  never  disclosed  until  after  notice  of  stoppage.^ 

§  4r»6.  Consignee's  Possession  Ends  Transit. —  Al- 
though it  may  be  true  that  possession  by  the  consignee  is 
not  requisite,  in  all  cases,  to  defeat  the  vendor's  right  in  the 
premises,  it  is  nevertheless  equally  true  that,  when  such  pos- 
session has  been  obtained  by  the  purchaser  in  good  faith, 
the  transit  Avill  be  at  an  end.  In  order  to  arrive  at  a  just 
conclusion  as  to  the  conflicting  rights  of  the  vendor  and 
vendee,  it  will  be  necessary  to  follow  the  inquiry  farther 
than  our  present  purposes  require.  Although  the  vendor's 
riglit  of  stoppage  may  still  attach  after  the  goods  have 
passed  out  of  the  possession  of  the  carrier,  for  the  reason 
that  they  have  not  been  accepted  by  the  insolvent  purchaser, 
or  by  any  one  authorized  to  act  for  him ; '  still,  if  the  car- 
rier's duties  with  respect  to  the  goods  have  ceased,  he 
cannot  be  affected  b}'-  notice  or  countermand  from  the 
vendor.* 

§  467.  Tiews  of  Chancellor  Kent.— In  giving  a  sum- 
mary of  the  authorities  upon  this  subject,  and  the  deductions 
to  be  drawn  therefrom,  Chancellor  Kent  lays  it  down  as  a 
general  rule  that  where  the  carrier  is,  b}'^  agreement,  con- 
verted into  a  special  agent  of  the  buyer,  the  transit  of  the 
goods  terminates,  and  with  it  the  right  of  stoppage.'' 

§  468.  Carrier  Discharged  by  Notice  at  End  of  Jonr- 
ney. —  It  would  follow,  therefore,  that  where  the  carrier  has 

1  Benj.  on  Sales,  §  857,  and  cases  cited. 

2  James  v.  Griffin,  2  M.  &  W.,  623.  See,  also,  Morris  v.  Shryock,  50 
Miss.,  590. 

3  Bolton  V.  Lane.  &  York.  R'y  Co.,  L.  R.,  1  C.  P.,  431 ;  35  L.  J.,  C.  P., 
137;  Grout  v.  Hill,  4  Gray,  361 ;  Lane  v.  Jackson,  5  Mass.,  157. 

4Isley  V.  Stubbs,  9  Mass.,  65;  Reynolds  v.  B.  &  M.  R.  R.,  43  N.  H., 
591 ;  Cabeen  v.  CampbeU,  30  Pa.  St.,  254;  Hoover  v.  Tibbits,  13  Wis.,  79; 
Harris  v.  Pratt,  17  N.  Y.,  249;  Sturtevant  v.  Orser,  24  N.  Y.,  538. 

5  2  Kent,  Com.,  545. 


NOTICE    TO    CARRIERS    AND    OTHER   BAILEES.  255 

completed  the  journey,  given  notice  of  the  arrival  of  the 
goods,  and,  by  the  lapse  of  a  reasonable  time  for  their  re- 
moval, has  ceased  to  be  responsible  for  them  as  carrier, 
whatever  may  be  the  rights  of  the  vendor  with  respect 
thereto,  the  carrier  having  renounced  all  control  over  them, 
could  not  be  rendered  liable  to  the  vendor  by  a  failure  to 
■respect  his  notice  of  stoppage. 

§  4:60.  storage  in  Government  Warehouse. —  A  com- 
mon instance  of  the  termination  of  the  transit  so  far  as  it 
affects  the  carrier,  while  it  still  continues  so  far  as  necessary 
to  give  the  vendor  the  right  to  perfect  his  lien  by  repossess- 
ing the  goods,  is  where  they  have  arrived  at  the  port  or 
place  of  destination  and  are  stored  in  a  public  warehouse  in 
default  of  payment  of  the  duties.  In  such  event  they  are 
not  considered  to  have  come  to  the  possession  or  subject  to 
the  control  of  the  vendee  in  any  sense  that  would  deprive 
the  vendor  of  his  right  of  repossession,  although  notice 
to  the  carrier  would  not  be  effectual.^  The  notice  or  order, 
to  be  effective  for  the  purpose  of  binding  the  carrier  or 
other  bailee,  should  be  given  to  the  person  actually  in  pos- 
session pursuant  to  the  bailment,  or  to  his  etnployer.- 

§  470.  Notice  to  Employee. —  Notice  to  the  owner  of  a 
vessel,  or  other  employer  of  the  one  who  has  immediate 
custody  or  control  of  the  goods,  in  order  to  be  binding,  must 
be  given  in  time  to  allow  of  the  transmission  of  orders  to  the 
master  of  the  vessel  or  other  employee,  before  the  termina- 
tion of  the  transitus}  To  hold  otherwise  would  be  to  re- 
quire the  employer,  in  order  to  escape  liabilit}^,  to  perform 
that  Avhich  is  impossible.  The  most  that  can  be  justly 
required  in  any  case  is  that  due  diligence  shall  be  used  to 
communicate  with  the  officer  or  servant  in  possession  of  the 
goods. 

1 3  Kent,  Com,,  547;  Donath  v.  Broomhead,  7  Pa.  St.,  301 ;  Mottram  v. 
Heyer,  5  Den.,  629;  Northey  v.  Field,  2  Esp.,  613. 

-  Mottram  v.  Heyer,  supra. 

^Id. ;  'Whitehead  v.  Anderson,  9  M.  &  W.,  518;  Litt  v.  Cowley,  7 
Taunt.,  169. 


256  NOTICE   BY   -SVHICn    LIABILITIES   AEE    CREATED. 

§  4:71.  Responsibility  of  Carrier.— It  is  of  the  utmost 
importance  that  the  carrier  act  circumspectly  upon  receipt 
of  a  notice  of  this  sort,  as  in  delivering  or  Avithholding-  the 
goods  after  notice  from  the  vendor  he  acts  at  his  peril.* 
The  difficulties  of  his  position  may  be  inextricably  compli- 
cated by  the  controversy  between  the  vendor  and  the 
vendee.  To  deliver  the  goods  when  the  notice  is  sufficient 
renders  him  liable  to  the  vendor.  Should  he  wrongfully 
witlihold  them  from  the  vendee  or  his  representatives,  he 
l)ecomes  responsible  for  his  conduct,  although  he  may  have 
acted  on  the  belief  that  the  stoppage  was  complete.- 

§  472.  Effect  of  Assigning  Bill  of  Lading.— The  addi- 
tional obstacle  to  a  clear  understanding  of  his  duties  in  the 
premises  is  presented  in  the  fact  that  the  vendor's  right  of 
stoppage  may  be  utterly  defeated  by  the  vendee.  "When 
the  goods  are  represented  by  a  bill  of  lading,  this  is  re- 
garded as  such  a  symbol  of  property,  in  the  hands  of  the 
vendee,  that  an  assignment  thereof  by  him  to  an  innocent 
purchaser  for  value  will  give  to  such  purchaser  a  right  to 
the  property,  which  is  paramount  to  any  rights  the  vendor 
may  have  to  reclaim  possession  of  the  same  for  unpaid  pur- 
chase money.* 

§473.  Mwst  be  to  Bona  Fide  Pnreliaser. —  But  in  order 
to  give  such  a  transfer  of  a  bill  of  lading  by  the  insolvent 
vendee  the  effect  of  cutting  off  the  right  of  the  vendor  to 
perfect  his  lien  for  the  purchase  money  by  stoppage  in 
transitu,  it  must  be  assigned  to  one  w^ho  comes  strictly 
within  the  description  of  assignees  whose  rights  are  pro- 
tected, not  only  because  of  the  hona  fides  of  the  transaction, 
in  the  sense  that  he  took  without  knowledge  or  informa- 
tion of  the  rights  of  the  vendor,  but  it  must  be  for  a  valu- 

iThe  Tigress,  32  L.  J.,  Adm.,  97;  S.  C,  9  Jur.,  N.  S.,  361. 

•-'Wilson  V.  Anderton,  1  B.  &  Ad.,  450;  Batuitt  v.  Hartley,  L.  R.,  7  Q. 
B.,  594;  Blackburn  on  Sales,  266. 

^Blanchard  v.  Page,  8  Gray,  281;  Holbrook  v.  Vose,  4  L.  Eeg.,  N.  S., 
602.  And  such  assignee  may  maintain  an  action  against  the  seller  who 
regains  possession  for  the  conversion  of  the  goods.  Rowls  v.  Deshler,  4 
Abb.  App.  Dec,  12;  Newhall  v.  Cent.  Pac.  R.  Co.,  51  Cal.,  345, 


NOTICE   TO    CAEEIEES    AND    OTHER    BAILEES.  257 

able  consideration.'  Thus,  where  a  bill  of  lading  of  goods 
in  transit  was  transferred  by  the  purchaser  to  a  creditor,  as 
collateral  security  for  past  indebtedness,  it  was  held  by  Mr. 
Justice  Bradley,  in  Lesassier  v.  The  Southwestern,-  that,  as 
the  transferee  had  given  up  nothing  as  a  further  considera- 
tion for  the  transfer,  h  was  not  such  an  assignment  as  would 
preclude  the  seller  from  stopping  the  goods  for  the  unpaid 
purchase  money,  in  case  of  the  insolvency  of  the  purchaser. 

§  474.  End  of  Transit  by  Interception. —  Although  the 
transitus  may  be  ended  by  the  purchaser  himself  before  the 
arrival  of  the  goods  at  the  port  of  delivery,  by  meeting 
them  at  an  intermediate  point,  and  though  he  may  defeat 
the  vendor's  lien  by  assignment  of  the  bills  of  lading,  the 
arrival  may  not  be  anticipated,  nor  the  right  of  stoppage 
defeated,  by  the  general  creditors  of  the  purchaser.  Ac- 
cordingly, where,  after  the  arrival  of  the  goods,  they  were 
placed  on  a  wharf  boat,  and  the  purchaser,  being  aware  of 
his  insolvency,  refused  to  accept  them,  and  so  informed  the 
vendor,  and  while  thus  situated  the  goods  were  attached  at 
the  suit  of  a  creditor,  it  was  held  that  the  vendor  might 
exercise  his  right  of  stoppage,  notwithstanding  the  attach- 
ment.^ 

§  475.  Preferred  to  Judgment  Creditor. —  For  the  same 
reasons  that  tlie  claim  of  the  vendor  for  unpaid  purchase 
money  would  be  preferred  to  that  of  the  attaching  creditor, 
it  is  held  that  a  seizure  by  an  officer  under  process  in  favor 
of  a  judgment  creditor  will  not  defeat  the  right  of  stop- 
page by  the  vendor.* 

§  476.  By  Whom  Given. —  An  important  matter  for  con- 
sideration in  connection  with  the  liability  which  may  be 
created  against  carriers  or  other  bailees,  by  notice  of  the 
vendor's  claim,  is  as  to  the  party  who  makes  the  claim  and 
gives  the  notice.     The  countermand,  when  addressed  to  the 

1  Lesassier  v.  The  Southwestern,  2  Woods,  35. 

2  Supra. 

3  Morris  v.  Shryock,  50  Miss.,  590. 

^  Rucker  v.  Donovan,  13  Kans.,  251. 

17 


258  KOTICE    BV    WHICH    LIABILITIES    AKE    CREATED. 

custodian  of  the  property,  unless  coming  from  one  possessed 
of  rights  in  tlie  premises,  must  be  disregarded.'  On  the 
other  hand,  if  given  by  one  recognized  by  the  law  as  enti- 
tled to  repossess  the  goods  for  his  indemnity  by  means  of 
a  stoppage  in  transitu,  such  notice,  if  otherwise  sufficient, 
cannot  be  ignored.  In  this  respect,  as  in  every  other,  the 
carrier  acts  at  his  peril.  The  duty  of  the  carrier  would  be 
suflSciently  plain  if  the  right  existed  onl}^  in  favor  of  actual 
vendors ;  but  it  has  been  repeatedly  held  that  it  may  be  ex- 
ercised with  the  same  effect  by  any  one  who  stands  in  the 
place  of  such  vendor,  with  respect  to  the  demand  upon  the 
purchaser. 

§477.  By  Factor. —  It  was  accordingly  held  by  Lord 
Ellexborougii  in  Feise  v.  Wray,-  that  the  right  existed  in 
favor  of  a  mere  factor.  In  that  case  the  consignor  had 
bought  the  goods  with  his  own  funds  in  a  foreign  port,  on 
account,  and  by  order  of  his  principal  in  London,  to  whom 
they  were  shipped.  The  principal  becoming  bankrupt  dur- 
ing the  transit,  and  the  assignee  demanding  the  possession 
of  the  goods  in  the  interest  of  the  estate,  contended  that 
the  factor  w^ho  purchased  the  goods  did  so  in  his  capacity 
of  agent ;  but  the  court  in  the  interest  of  justice  chose  to 
consider  him  as  a  vendor,  Avho  sold  the  goods  to  his  London 
correspondent  at  cost,  plus  his  commissions.^ 

§  478.  By  Party  to  Contract  Respecting  the  Goods. — 
So  where  the  vendor  has  merely  an  interest  in  an  executory 
contract  with  respect  to  the  goods  in  transit,  as  in  the  case 
of  Jenkins  v.  Usborne,*  where  the  plaintiff  sold  a  portion  of 
a  cargo,  the  property  in  which  had  not  yet  vested  in  him, 
but  he  merety  would  have  a  right  to  the  designated  portion 
after  it  was  separated,  this  interest  was  held  to  be  such, 

1  Hutcliinson  on  Car.,  §  411. 

'-  3  East,  93. 

3  Seymour  v.  Newton,  105  Mass.,  272;  Newhall  v.  Vargas,  13  Me.,  93; 
Gossler  v.  Schepeler,  5  Daly  (N.  Y.),  476 ;  Frascheris  v.  Henriques,  6 
Abb.  (N.  S.),  251;  Snee  v.  Prescot,  1  Atk.,  245;  The  Tigress,  32  L.  J., 
Adm.,  97;  EUersbaw  v.  Magniac,  6  Exch.,  570. 

*7M.  &G.,  678. 


NOTICE    TO    CAERIEES   AKD    OTHER   BAILEES.  259 

that  on  the  insolvency  of  his  vendee  he  was  entitled  to  stop 
the  delivery  for  the  unpaid  purchase  money. 

§479.  By  Owner's  Guarantor. —  The  recent  case  of 
Gossler  v.  Schepeler  ^  was  where  the  goods  were  purchased 
in  a  foreign  port  upon  the  faith  of  a  letter  of  credit,  from 
the  party  claiming  the  right  of  stoppage.  The  purchaser 
had  agreed  to  transfer  the  bills  of  lading  to  his  guarantor, 
as  security,  but  failed  to  comply  with  his  contract.  During 
the  transit  the  purchaser  became  bankrupt,  and  the  exercise 
of  the  right  by  the  guarantor  was  allowed  by  the  court,  as 
against  the  claim  of  the  assignee  in  bankruptcy  for  the  pos- 
session of  the  goods,  upon  the  ground  that  he  had  paid  the 
purchase  price,  and  was  thereby  subrogated  to  all  the  rights 
of  an  original  vendor.  In  deciding  this  case,  one  of  the 
principal  authorities  cited  in  support  of  the  right  of  the 
party  assuming  the  payment  of  the  purchase  money,  to 
stoppage  for  his  own  security,  is  Benjamin  on  Sales.^  It  is 
there  laid  down  that  such  right  could  be  claimed  under  the 
provisions  of  the  statute,'  by  a  surety  who  had  paid  the 
vendor ;  but  a  case  is  cited  prior  to  the  statute,*  in  which  it 
was  decided  that  a  mere  surety  for  the  buyer  had  no  right 
to  stop  in  transitu. 

§  480.  By  Agent. —  Stoppage  may  be  made  by  an  agent, 
on  behalf  of  the  principal,  whether  he  has  been  thereto 
specially  authorized,  or  acts  pursuant  to  general  authority 
derived  from  the  nature  and  scope  of  his  employment.' 
And  such  authority,  where  it  is  special,  may  be  derived 
from  subsequent  ratification,  as  well  as  fi«m  prior  appomt- 
ment,"  subject,  however,  to  the  provision  that,  in  order  to 

1  5  Daly,  476. 

2Jn/m,  §§830,  831. 

3 19  and  20  Vict,  c.  97. 

4  Skiff  en  v.  Wray,  6  East,  871. 

•■■'Reynolds  v.  B.  &  M.  R.  R.,  43  N.  H.,  580;  Bell  v.  Moss,  5  Wliart., 
189;  ^Vliitehead  v.  Anderson,  9  M.  &  W.,  518;  Chandler  v.  Fulton,  10 
Tex.,  2. 

«  Hutchings  v.  Nunes,  1  Moore,  P.  C,  N.  S.,  343, 


2G0  NOTICE    BY    WillCn    LIABILITIES   AUE   CBiEATED. 

operate  as  a  justification  of  the  carrier's  act  in  witliholding 
the  goods  from  the  purchaser,  or  to  render  him  liable  for 
not  respecting  the  countermand,  such  sulbsequent  approval 
must  be  prior  to  the  tennination  of  the  transitus} 

§  4r80a.  Notice  of  Facts  Requiring  Extra  Care, —  The 
care  to  be  used  in  handling  goods  delivered  to  a  common 
carrier  for  transportation  must  depend  in  no  small  degree 
upon  the  nature  of  the  goods  consigned.  It  is  also  essential, 
where  the  goods  are  of  a  kind  that  demand  extraordinary 
care  in  handling,  that  the  carrier  should  have  notice  of  this 
fact,  in  order  to  render  him  liable  for  any  injuries  resulting 
from  a  want  of  such  care.  When  the  articles  consigned 
bear  plain  and  legible  marks  indicating  their  peculiar  quali- 
ties, or  the  contents  of  packages,  the  carrier  will  be  suflB- 
ciently  notified  for  all  purposes  affecting  his  liabihty.^  But 
where  the  quality  of  the  article  shipped  is  obvious,  and  it 
may  be  readily  distinguished  from  other  grades  of  the  same 
article,  notice  of  this  difference,  or  of  any  different  use  for 
which  it  was  intended,  is  unnecessary,  in  order  to  render  the 
carrier  hable  for  the  loss  occasioned  by  handling.  Thus 
where  plaintiff  shipped  a  selected  car  load  of  corn  in  the 
ear,  to  be  sold  as  seed  corn,  and  the  carrier  caused  it  to  be 
shelled,  whereby  it  deteriorated  in  value,  it  was  held  that 
defendant  was  not  entitled  to  notice  of  the  peculiar  value 
possessed  by  corn  in  the  ear  for  seed  purposes.  The  use  to 
which  it  was  to  be  put  was  not  of  an  extraordinary  char- 
acter, and  hence  the  carrier  could  be  held  for  the  difference 
in  price  which  sead  corn  would  bring  for  this  purpose,  as 
weU  as  another.' 

An  extraordinary  apphcation  of  the  general  doctrine  that 
the  carrier  is  entitled  to  notice  of  the  peculiar  condition  of 
a  passenger,  to  create  liability  for  damages  resulting  from  a 
want  of  the  extra  care  that  such  condition  required,  is  made 

1  Bird  V.  Brown,  4  Exch.,  786. 

•  Hastings  v.  Pepper,  11  Pick.,  41 ;  Mechanics',  etc.,  Bank  v.  Gordon,  5 
La.  An.,  604. 
3  Missouri  Pac.  K'y  Co.  v.  Nevin  (Kansas),  2  Pac.  Rep.,  795. 


NOTICE   TO    CAKEIERS   AND   OTHER   BAILEES.  261 

in  Pullman  Palace  Car  Co.  v.  Baker.^  The  facts  of  the  case 
were  that  plaintiff,  a  married  woman,  was  traveling  on  one 
of  defendant's  sleeping  cars,  which  in  consequence  of  de- 
fective construction  caught  fire.  In  order  to  avoid  burning 
to  death  she  was  compelled  to  leave  her  berth  and  the  car 
in  her  night  clothes,  and  in  her  bare  feet.  She  was  in  a 
normal  state  of  health,  but  it  happened  during  her  period 
of  menstruation,  and  in  consequence  of  the  exposure  the 
flow  of  the  menses  was  arrested,  producing  serious  and  per- 
manent injury.  There  was  no  question  but  that  defendant 
was  negligent  in  permitting  the  car  to  take  fire,  l^ov  was 
there  any  pretense  that  the  natural  state  of  health  of  plaint- 
iff contributed  in  any  way  to  the  burning  of  the  car,  nor 
that  she  was  to  be  regarded  as  negligent  for  being  in  that 
condition  at  that  particular  time.  The  court  seemed  to  re- 
gard her  as  a  sick  person,  and  compared  her  state  of  health 
to  that  of  a  person  with  a  cut  foot.  The  conclusion  was 
that  slie  could  not  recover,  for  the  reason  that  she  did  not 
give  notice  to  the  company  of  her  condition,  presumably  to 
the  end  that  it  would  have  taken  extra  precautions  against 
fire,  or  might  have  given  her  timely  notice  of  the  conflagra- 
tion, or  would  have  furnished  her  a  safe  and  comfortable 
retreat  where  she  would  not  have  been  exposed,  in  lier  bare 
feet,  to  the  inclement  weather.^ 

§  4:80b.  Notice  of  Loss  by  Shippers. —  The  necessity  for 
any  special  notice  of  a  claim  for  damages  must  be  one 
which  arises  out  of  the  contract  with  the  carrier.  But  even 
where  such  notice  is  stipulated  for,  the  contract  will  receive 
a  reasonable  construction,  and  the  liability  may  be  fixed  by 
a  substantial  compliance  with  the  terms  of  the  contract. 
Thus  when  cattle  were  received  for  transportation,  under  a 
contract  that  "  no  claim  for  loss  or  damage  on  five  stock 
will  be  allowed  unless  the  same  is  made  in  wi'iting,  before 

14  Colo.,  344. 

21  am  not  aware  of  a  single  instance  where  this  valuable  additioh  to 
the  law  governing  common  carriers  has  been  cited  with  approval.  It 
has  probably  been  overlooked. 


262  NOTICE   BY    WHICH   LIABILITIES   AKE   CREATED. 

or  at  the  time  the  stock  is  unloaded,"  and  verbal  notice  of 
a  claim  for  injmy  at  the  time  of  unloading,  and  written 
notice  three  da3's  after,  were  given,  and  received  by  the  com- 
pany without  objection  as  to  form  or  time,  it  was  held  a 
substantial  compliance  with  the  contract,  and  the  company's 
liabihty  was  fixed  thereby.' 

1  Rice  V.  K.  P.  R'y,  63  Mo.,  314. 


NOTICE   OF   SUIT    IN   EJECTMENT,  TO   WAKEANTOK.  2G3 


Y.  Notice  of  Suit  in  Ejectment,  to  "Wakrantok.^ 

§  480c.   The  Remedy  Wliich  Depends  on  the  Notice. 
480d.  The  Form  and  Sufficiency  of  Notice. 
480e.   Waiver  of  Notice. 
480/.   By  Wliom  the  Notice  Should  be  Given. 

§  480c.  The  Remedy  Which  Depends  on  the  Notice. — 

Oae  of  the  most  important  of  the  ancient  covenants  in  a 
deed  was  that  of  warranty,  whereby  the  grantor  of  the 
freehold  and  his  heirs  were  bound,  either  upon  voucher  or 
by  judgment  in  a  writ  of  warrantia  chartcE,  in  case  of  evic- 
tion of  the  grantee  or  his  heirs  by  paramount  title,  to  yield 
other  lands  of  equal  value."  But  the  heir  of  the  warrantor 
was  bound  only  on  condition  that  he  held,  as  assets,  other 
lands  of  equal  value  by  descent.  Warranty  was  of  two 
kinds:  Lineal  and  collateral.  The  former  was  where  the 
heir  derived  title,  either  from  or  through  the  ancestor  who 
made  the  Avarranty;  the  latter  Avas  where  the  warranty 
barred  the  heir  from  claiming  the  land  by  any  collateral 
title,  although  his  own  was  not  derived  from  the  warranting 
ancestor,  upon  the  presumption  that  he  might  thereafter 
have  assets  by  or  through  the  ancestor. 

One  of  the  incidents  of  the  ancient  remedy  of  warrantia 
chartoB  was  that  when  the  warrantor  was  "  vouched,"  as  the 
process  of  summons  was  called,  and  judgment  obtained 
against  the  tenant  who  was  evicted,  judgment  in  favor  of 
the  latter  Avas  entered  at  the  same  time  against  the  war- 
rantor. By  the  civil  law,  as  adopted  in  the  state  of  Loui- 
siana, if  the  purchaser  by  warranty  deed  fails  to  cite  his 
vendor  or  warrantor,  the  latter  cannot  be  held  liable  for 
the  costs  and  damages  resulting  from  defending  the  action. 
B}'^  the  Spanish  law,  the  vendee  who  failed  to  cite  his  vendor 
in  warranty  lost  all  recourse  on  him.^ 

I  For  the  suggestion  of  this  subject  as  a  branch  of  the  law  of  notice, 
the  author  cheerfully  acknowledges  liis  indebtedness  to  Hon.  James  O. 
Pierce  of  Tennessee.     See  6  Soutli.  Law  Eev.,  719. 

2 Coke  on  Litt.,  365 ;  4  Kent,  Com.,  468. 

3  Delacroix  v,  Cenas,  20  Martin  (La.),  356. 


2G4         NOTICE  BY  wnicn  liabilities  are  created. 

The  remedy  b}"  ancient  warranty  never  gained  a  practi- 
cal foothold  in  the  United  States,  and  is,  by  statute,  shorn 
of  some  of  its  incidents  upon  Avhich  much  learning  and  sub- 
tlety have  been  wasted.  The  modern  covenant  of  war- 
ranty still  possesses  a  semblance  of  the  qualities  of  the 
ancient  remedy.  But  instead  of  the  summons,  the  war- 
rantor, in  case  of  a  suit  against  his  grantee,  immediate  or 
remote,  is  serv^ed  with  a  notice.  In  case  of  his  failure  to 
appear  in  response  to  notice,  or  in  any  event,  the  judgment 
against  his  grantee  becomes  conclusive,  not  only  in  favor 
of  the  plaintiff  in  that  action,  but  in  favor  of  the  defend- 
ant, when  the  latter  sets  up  the  paramount  title  by  which 
he  was  evicted,  in  an  action  on  the  covenant  of  warranty.^ 
But  the  rule  is,  at  least  in  the  common  law  states,  that  the 
party  sued  in  ejectment  loses  no  right  of  action  against 
the  warrantor  by  a  failure  to  serve  the  latter  with  notice.- 
The  effect  of  such  failure  is  merely  to  leave  the  question  of 
l)aramount  title  open  to  contest  in  the  action  on  the  cove- 
nant. The  warrantor  is  not  concluded  by  the  judgment 
against  his  grantee.^  He  is  still  at  liberty  to  defend  the 
action  on  tlie  covenant  of  warranty,  by  contending  that 
his  title  was  perfect;  whereas,  if  he  has  been  properly  noti- 
fied of  the  action  against  his  grantee,  there  will  be  little 
beyond  the  measure  of  damages  for  the  evicted  party  to 
prove  when  he  sues  for  breach  of  covenant  of  warranty.'' 
The  measure  of  damages  is  generally  the  price  paid  for  the 
land  by  the  evicted  party,  with  interest  and  costs.'^    But  in 

1  Eawle  on  Covenants,  218 ;  Miner  v.  Clark,  15  Wend. ,  425 ;  Greenlow 
V.  Williams,  2  Lea,  533. 
2 King  V.  Kerr,  5  Ohio,  154;  Claycomb  v.  Hunger,  51  111.,  378. 

3  Rawle  on  Covenants,  232. 

4  Chamberlain  v.  Preble,  11  Allen,  870;  Cooper  v.  Watson,  10  Wend., 
205;  Turner  v.  Goodrich,  26  Vt.,  708;  Hinds  v.  Allen,  34  Conn.,  195 
Pitkin  r.  Leavitt,  13  Vt.,  379;  Poul  v.  Witman,  3  Watts  &  Serg.,  409 
Chapman  V.  Holmes,  10  N.  J.  L.,  20;  Wimberly  v.  Collier,  32  Ga.,  13 
Boyd  V.  Whitfield,  19  Ark.,  447;  Wendel  v.  North,  24  Wis.,  223. 

5  Pitcher  v.  Livingston,  4  Johns.,  1;  Marston  v.  Hobbs,  2  Mass.,  433; 
Talbot  17.  Bedford,  Cooke  (Term.),  447;  Lowther  v.  The  Commonwealth, 
1  Hen.  &  Munf.,  202;  Stout  i'.  Jackson,  2  Rand.,  132;  Bennet  v.  Jen- 


NOTICE   OF   SUIT   IN   EJECTMENT,  TO   WAKEANTOE.  265 

some  cases  it  has  been  decided  to  be  the  value  of  the  land 
at  the  date  of  eviction.^ 

The  principle  upon  which  this  notice  operates  conclu- 
sively upon  the  warrantor  is  that,  upon  being  informed  of 
the  pendency  of  the  action  to  try  the  title  of  land  which 
he  has  warranted,  he  has  an  opportunity  to  appear  and  de- 
fend the  same,  or  at  least  fuimish  the  covenantee  the  means 
of  making  such  defense,  and  if  he  sees  proper  to  stand  by, 
and,  for  want  of  the  evidence  which  it  was  his  duty  to  sup- 
ply, suffer  judgment  to  pass  against  his  grantee,  he  shall 
not  be  heard  to  question  the  judgment  by  which  the  latter 
was  evicted.'^  And  the  warrantor  is  even  held  to  be  thus 
estopped  by  notice,  though  the  plaintiff  in  the  action  on 
the  warranty,  in  order  to  save  himself  from  eviction,  has 
been  forced  to  purchase  the  outstanding  paramount  title.' 
The  notice  is  also  held  to  have  the  same  effect  when  the 
suit  is  brought  by  the  covenantee  to  recover  possession  of 
the  land  purchased  with  warranty.^ 

§  4:80d.  The  Form  and  Sufficiency  of  tlie  Notice.—  No 
particular  form  of  words  is  essential  to  render  the  notice 
binding  upon  the  party  served.  Its  matter  must  be  gov- 
erned by  the  purpose  which  it  is  intended  to  subserve.  But 
in  every  case  it  must  be  sufficiently  certain  and  ex])licit  to 
convey  to  the  mind  of  the  party  notified  that  the  purchaser 
has  been  sued  by  one  claiming  to  hold  the  paramount  title 
adverse  to  the  grantor,  and  that  the  latter  is  required  to 
defend  the  suit.^    "Whether  it  should  be  written  or  verbal 

kins,  13  Johns.,  50;  Cox  v.  Strode,  2  Bibb,  273;  Slieets  v.  Andi-ews,  2 
Blackf.,274. 

iGore  V.  Brazier,  3  Mass.,  533;  Caswell  v.  Wendell,  4  Mass.,  523; 
Sweet  r.  Patrick,  3  Fairf.,  1;  Sterling  v.  Peet,  14  Conn.,  245;  Park  v. 
Bates,  12  Vt.,  381;  Bissell  v.  Erwin,  13  La.,  143. 

2Lisk  V.  Woodruff,  15  111.,  15;  Chamberlain  v.  Preble,  11  Allen,  370. 

3  McConnell  r.  Downs,  48  111.,  271 ;  Lisk  v.  AVoodruff,  15  111.,  15. 

4  Brown  v.  Taylor,  13  Vt.,  637 ;  Gragg  v.  Richardson, 25  Ga.,  570;  White 
V.  WilUams,  13  Texas,  258,  The  fact  that  the  land  to  which  the  gi-antor 
had  no  title  was  inadvertently  included  in  the  warranty  deed  was  held 
to  be  a  good  defense  to  an  action  on  the  covenant.  Steward  v,  Had- 
ley,  55  Mo.,  235. 

5  Paul  V.  Witman,  3  Watts  &  Serg.,  410;  Rawle  on  Gov.,  233. 


26G  NOTICE   BY   WHICH   LIABILITIES   AEE   CBEATED. 

is  not  definitely  settled  by  a  very  imposing  array  of  author- 
ity; but  if  otherwise  sufficient  may  always  be  in  writing. 
So  far  as  the  authorities  examined  determine  the  question, 
however,  it  Avill  answer  the  piu'pose  equally  well  if  commu- 
nicated verbally.^  But  the  notice,  to  be  sufficient  in  point 
of  time,  should  be  given  so  long  before  the  trial  of  the 
issues  that  the  grantor  may  have  an  opportunity  to  present 
his  title.  He  should  probably  have  the  same  right  to  delay 
the  trial,  upon  a  proper  showing,  as  though  he  were  defend- 
ing as  a  part}^  to  the  action.- 

§  480e.  Waiver  of  Notice. —  The  effect  of  this  notice 
not  being  greater  than  that  of  service  of  original  process, 
it  may  be  waived  by  the  appearance  of  the  warrantor 
and  his  participation  in  the  defense.  The  object  of  the 
notice  is  that  he  may  have  this  opportunity,  and  where  he 
avails  himself  thereof,  upon  informal  notice,  he  stands  in 
the  position  of  a  defendant  who  voluntarily  appears.  He 
is  not,  it  is  true,  a  party  to  the  record,  but  neither  does  he 
become  a  party  to  the  judgment.  But  he  is  present  for  all 
the  purposes  intended  by  the  notice,  and  his  rights  may  be 
affected  by  the  judgment  to  the  same  extent  as  though  he 
had  been  specifically  notified  of  the  suit.' 

§480f.  By  Whom  the  Notice  Should  be  Given.— The 
partial  analogy  between  the  notice  served  upon  the  war- 
rantor and  the  process  served  upon  a  party  defendant  does 
not  render  it  essential  that  the  former  should  be  served  by 
an  officer,  or  by  one  who  would  be  competent  to  serve  a 
summons  in  the  case.  But  though  it  be  of  little  importance 
by  whom  the  notice  is  served,  it  is  of  considerable  impor- 
tance by  whom  the  notice  is  given.  The  notice  should  pro- 
ceed from  the  warrantee  or  party  relying  on  the  covenant.* 
But  whether  the  notice,  in  order  to  render  the  judgment 
conclusive,  should  be  directly  from  the  defendant  to  a  re- 
mote grantor,  or  whether  it  might  not  be  equally  effective 

1  Somers  v.  Schmidt,  24  Wis.,  417;  1  Am,  Rep.,  191. 

2  Davis  V.  Wilbom-ne,  1  Hill  (S.  C),  28 ;  Greenlow  v.  Williams,  2  Lea,  539. 

3  Chamberlain  v.  Preble,  11  Allen,  373. 
< Somers  v.  Schmidt,  24  Wis.,  417. 


NOTICE    OF   SUIT   IN    EJECTMENT,  TO    WAEEANTOE.  267 

if  given  by  tlie  immediate  grantor  of  the  defendant,  is  not 
so  clear. 

It  has  been  ably  argued  that  for  the  reason  that  the 
effect  of  the  judgment,  when  relied  upon  as  conclusive  evi- 
dence of  the  paramount  title,  and  hence  of  the  breach  of 
warranty,  operates  by  way  of  estoppel,  the  principle  that 
estoppels  should  be  mutual  would  render  notice  from  an  in- 
termediate warrantor  nugatory ;  that  "  the  estoppel  results 
from  the  operation  of  the  notice,  as  an  equivalent  to  process, 
in  making  the  covenantor  a  quasi  party ; "  and  that  it  would 
seem  contrary  to  estabUshed  analogies  to  allow  one  ]3arty 
the  benefit  of  e\adence  created  in  a  transaction  between 
himself  and  another,  when  he  is  seeking  to  enforce  a  right 
against  a  third  party.^  It  is  true  that  the  effect  of  the  no- 
tice is  to  make  the  question  of  paramount  title  res  judicata, 
although  the  judgment  was  rendered  in  a  suit  between  other 
parties.  But  it  has  this  effect,  regardless  of  the  person  who 
gives  the  notice.  The  question,  as  stated  by  Judge  Pieece, 
in  the  Southern  Law  Review,  is  where  A.  conveyed  to  B., 
and  B.  to  C.  by  covenant  of  general  warranty,  and  D.  brings 
his  action  against  the  latter,  who  gives  notice  to  B.,  and  B. 
to  A.,  whether  C,  in  an  action  against  A.,  after  judgment 
of  eviction,  may  have  the  benefit  of  the  judgment  as  con- 
clusively establishing  the  breach  of  the  latter's  covenant. 
It  is  not  questioned  that  the  notice  served  upon  B.  would 
have  this  effect  in  an  action  against  him,  nor  that  it  would 
have  been  equally  effective  against  A.  had  he  been  notified 
by  C.  instead  of  by  B.  This  is  a  question  that  can  hardly 
be  decided  upon  the  supposed  analogy  which  the  notice 
bears  to  process  by  which  one  is  made  a  party  to  the  judg- 
ment. The  means  are  too  dissimilar,  and  the  ends  aimed 
at,  too  widely  different.  The  condition  of  a  warrantor, 
whether  mediate  or  immediate,  when  thus  affected  by  a 
judgment  against  his  warrantee,  is  unique.  Yet  it  is  pre- 
cisely what  he  bargained  for.     The  notice  is  not  necessarily 

1  Hon.  James  O.  Pierce,  in  6  South.  Law  Rev.,  N.  S.,  719,  728.    Citing 
Petrie  v.  NuttaU,  11  Esch.,  569. 


268  NOTICE   BY    WUICn    LIAJBILITIES    AKE   CREATED. 

a  matter  of  record ;  nor  is  judgment  entered  against  the 
warrantor.  It  is  not  teclmical  notice  that  he  is  entitled  to, 
but  actual,  specific,  timely  information,  that  should  proceed 
from  tlie  party  interested  in  bringing  the  matter  to  his  at- 
tention. The  object  of  the  notice  is  to  afford  the  cove- 
nantor an  opportunity  to  appear  and  show  that  his  deed 
passed  a  good  title,  and  hence  that  there  is  no  breach  of 
warrant}^  It  is  difficult  to  comprehend  why  the  purpose 
of  the  notice  and  its  authenticity  are  not  as  well  preserved 
when  it  comes  from  C.  through  B.  to  A.  as  though  it  went 
from  C.  to  A.  direct.  If  a  negotiable  promissory  note  is 
dishonored  in  the  hands  of  the  holder,  each  indorser  is  as 
effectually  bound  by  notice  from  his  immediate  indorsee, 
where  information  of  the  fact  is  communicated  from  one  to 
'the  other,  as  though  all  were  directly  notified  by  the  holder 
of  the  note.^  It  is  none  the  less  notice  from  the  party  who 
relies  upon  the  covenant  merely  because  it  has  been  trans- 
mitted through  an  intermediate  party  equally  interested  in 
conveying  the  notice  to  the  original  warrantor. 

For  the  foregoing  reasons  the  writer  feels  constrained  to 
take  a  different  view  of  this  question  from  that  laid  down 
by  the  learned  ^\T^'iter  who  has  called  attention  to  this 
branch  of  the  subject.  The  right  to  claim  the  benefit  of 
the  notice  should  be  enjoyed  by  the  warrantee  who  has 
been  evicted,  as  against  any  prior  warrantor  who  has  re- 
ceived notice  of  the  suit  from  an  intermediate  warrantor, 
who  in  turn  has  been  notified  by  the  party  evicted. 

If  the  question  were  one  of  principle,  entirely  uncon- 
trolled by  authority,  it  would  not  be  going  too  far  to  say 
that  if  the  warrantor  had  certain  and  specific  knowledge 
or  information  from  any  reliable  source,  or  by  any  means, 
that  the  action  was  pending,  and  he  had  sufficient  oppor- 
tunity to  defend  his  title,  he  would  be  concluded  by  the 
judgment  when  sued  by  any  subsequent  warrantee. 

i  Post,  %  195. 


NOTICE  BY  WHICH  LIABILITY  FOK  TOET  MAY  BE  FIXED.       209 


VI.  KoTicE  BY  Which  Liability  for  Tokt  May  be  Fixed. 

§  4805r.  The  Liability  of  Municipal  Corporations  for  Nuisance  —  Fail- 
ure to  Keep  Highway  in  Repair. 

4807i.    Notice  to  Abate  Nuisance. 

4S0i.     Dangerous  Animals. 

4S0Jc.  Notice  of  Dangerous  Condition  of  Machinery  —  Misconduct  of 
Employees,  etc. 

§  480g.  The  Liability  of  Municipal  Corporations  for 
Nuisance — Failure  to  Keep  Highway  in  Repair. — "For 

taking,  or  refusing  to  take,  strictly  governmental  action, 
municipal  corporations  are  under  no  responsibility  whatever 
except  the  political  responsibility  to  their  corporations  or 
to  the  state."  ^  Nevertheless  there  is  a  class  of  duties  im- 
posed upon  municipal  corporations  which  they  owe  not  only 
to  their  own  citizens,  but  to  other  individuals  as  well.  Thus 
it  is  generally  recognized  as  the  duty  of  a  town  or  city  to 
keep  in  repair  the  streets  and  sidewalks  of  which  it  assumes 
control.  As  a  consequence  of  this  duty  to  individuals,  it 
may  become  liable  to  those  injured  by  a  failure  in  its  faith- 
ful discharge.-  But  this  liability  is  of  statutory  creation, 
and  is  subject  to  certain  conditions.^  In  an  action  against 
a  town,  to  recover  damages  for  an  injury  sustained  from  a 
defect  in  a  public  highway,  it  must  be  shown  that  the 
authorities  had  notice  of  the  defect,  prior  to  the  injury.* 
Yet  where  an  injury  was  received  from  the  giving  way  of  a 
bridge,  the  keeping  in  repair  of  which  was  by  statute  im- 

» Cooley  on  Torts,  620. 

2Cooley  on  Torts,  625;  Munson  v.  Town  of  Derby,  37  Conn.,  298;  9 
Am.  Rep.,  332. 

3  Town  of  Waltham  v.  Kemper,  53  111.,  346;  8  Am.  Rep.,  652;  Wliite 
V.  County,  58  111.,  297;  11  Am.  Rep.,  65;  Young  v.  Commissioner,  etc., 
2  Nott  &  McC,  537;  Mower  v.  Leicester,  9  Mass.,  247;  PeiTy  v.  John,  79 
Pa.  St.,  411 ;  Niles  v.  Martin,  4  Mich.,  557;  Detroit  v.  Blakely,  21  Mich., 
84 ;  State  v.  Cumberland,  7  R.  I.,  75 ;  Sutton  r.  Board  of  Police,  41  Miss., 
286;  Huffman  v.  San  Joaquin  Co.,  21  Cal.,  426;  Barbour  Co.  v.  Horn,  48 
Ala.,  649;  Cooley  on  Torts,  622. 

*Goodnough  v.  Oshkosh,  34  Wis.,  549;  1  Am.  Rep.  203. 


270  ■    NOTICE   BY    WHICH   LIABILITIES   ARE   CREATED. 

posed  upon  the  municipal  corporation,  it  was  held  that 
though  the  defect  was  a  latent  one  which  could  not  be  dis- 
covered by  skilled  persons  employed  by  the  corporation,  the 
corporation  was  liable.^ 

The  fact  of  notice  to  the  controlling  authorities  need  not 
in  ever}"  instance  be  established  by  evidence  of  express  no- 
tice or  positive  personal  knowledge  of  the  defect  complained 
of,  as  it  may  be  presumed  where  it  has  existed  for  a  consid- 
erable length  of  time  prior  to  the  injury,  and  must  have 
been  detected  by  the  officers  of  the  municipahty  in  the  or- 
dinary discharge  of  their  duties.^  Thus,  where  a  traveler 
was  injured,  without  fault  or  negligence  on  his  part,  in  con- 
sequence of  the  removal  of  some  planks  from  a  bridge,  a 
city  that  was  bound  to  keep  the  bridge  in  repair  was  held 
liable,  though  no  actual  notice  of  the  defect  had  been  given, 
sufficient  time  having  elapsed  prior  to  the  injury  to  render 
the  defective  condition  of  the  bridge  a  matter  of  notoriety.' 
But  whether  notice  to  the  municipality  can  be  inferred  from 
the  lapse  of  time  is  a  question  for  the  jury,  and  cannot  be 
laid  down  in  any  case  as  a  conclusion  of  law.'* 

In  order  to  render  the  corporation  liable  it  is  not  essential 
that  the  immediate  cause  of  the  injury  of  which  it  has  no- 
tice shall  be  a  defect  in  the  highway  which  has  been  con- 
demned or  formally  dedicated  to  public  use.  Thus,  where 
plaintiff  was  passing  along  a  street  which  the  city  was 
bound  to  keep  in  repair,  and,  in  order  to  avoid  the  kick  of  a 
mule,  fell  or  jumped  into  an  excavation  on  the  border  of 

iRopho,  etc.,  Townships  v.  Moore,  68  Pa.  St.,  404;  8  Am.  Rep.,  202; 
Mocliler  v.  Town  of  Shaftsbury.  46  Vt.,  580;  14  Am.  Rep.,  634. 

2Goodnough  v.  Oslikosh,  24  Wis.,  549;  Requa  v.  City  of  Rochester,  45 
N.  Y.,  129 ;  6  Am.  Rep.,  52.  See  Wisenberg  v.  City  of  Appleton,  26  Wis., 
56;  7  Am.  Rep.,  39. 

3  Requa  V.  City  of  Rochester,  45  N.  Y.,  129;  Green  r.  Danby,  12  Vt., 
388;  CWcago  v.  McCarthy,  75  111.,  602;  Peru  v.  French,  55  lU.,  317; 
Chicago  V.  Langlass,  66  111.,  361 ;  Galesburg  v.  Higley,  61  lU.,  287. 

*  Colby  V.  Inliabitants  of  AVestbrook,  57  Me.,  181;  2  Am.  Rep.,  30; 
Reed  v.  Northfield,  13  Pick.,  94;  Harnden  v.  New  Haven,  etc.,  Co.,  27 
Conn.,  158;  Bragg  v.  Bangor,  51  Me.,  532;  Holt  v.  Penobscot,  56  Me.,  15. 


NOTICE  BY  WHICH  LIABILITY  FOR  TOUT  MAY  BE  FIXED,       2T1 

the  street,  of  wliich  the  city  had  notice  that  it  rendered  the 
street  dangerous,  the  city  was  held  liable  for  the  resulting 
injuries.^ 

§  480h.  Notice  to  Abate  Nuisance. —  The  right  of  an 
individual  to  abate  a  nuisance  which  is  the  result  of  the  acts 
or  omissions  of  another,  in  some  instances  depends  upon 
notice.  Thus,  where  one  party  builds  a  house  on  land 
where  another  has  a  right  of  common,  before  the  latter 
could  forcibly  abate  the  nuisance  it  was  held  his  duty  to 
notify  the  party  responsible  therefor.'-  The  object  of  this 
is,  of  course,  to  enable  the  wrong-doer  to  remove  the  nui- 
sance. But  the  party  responsible  for  a  nuisance  is  not,  in 
every  case,  entitled  to  notice.  Where  the  act  complained 
of  is  one  of  positive  wrong  or  wilful  negligence,  or  the 
security  of  life  or  property  is  endangered  and  the  danger 
seems  imminent,  the  party  threatened  with  the  injury  may 
abate  the  same  without  giving  notice  to  the  "WTong-doer  or 
waiting  for  him  to  remove  it.^  Where,  however,  the  nui- 
sance is  merely  permitted  to  exist,  and  the  case  is  not  very 
urgent,  notice,  and  an  opportunity  to  remove  it,  is  essential 
before  the  complaining  party  would  be  justified  in  forcibly 
abating  the  same.* 

§  480i.  Dangerous  Animals. —  Whether  the  oAATier  of 
animals  may  be  held  liable  for  injuries  committed  by  them 
is  not,  at  common  law,  a  question  of  diligence  in  the  care 
of  such  animals,  so  much  as  it  is  one  of  notice  or  kno\vledge 
of  the  propensity  of  the  animal  to  inflict  injur3\'  Thus, 
the  keeping  of  a  vicious  dog,  after  notice  of  his  disposition, 
was  held  to  render  the  owner  liable  to  any  one  injured, 

1  Basset  v.  City  of  St.  Joseph,  53  Mo.,  290 ;  14  Am.  Rep.,  446. 

2  Baldwin  v.  Smith,  83  lU.,  162;  Perry  v.  Fitzhowe,  8  Q.  B.,  757;  Bur- 
ling V.  Read,  11  Q.  B.,  904;  Davis  v.  WilHams,  16  Q.  B.,  546;  Meeker  v. 
Van  Rensselaer,  15  Wend.,  397;  State  v.  Parrott,  71  N.  C,  311. 

3  Earl  of  Lonsdale  v.  Nelson,  2  B.  &  C,  302. 

*  Jones  V.  "Wilhams,  11  M.  &  W.,  176;  Meeker  v.  Van  Rensselaer, 
15  Wend.,  397;  Van  Wormer  v.  Albany,  15  Wend.,  262;  Occum  Co.  v. 
Sprague  Co.,  34  Conn.,  529;  Hart  v.  Albany,  3  Paige,  213. 

5  May  V.  Burdett,  9  Q.  B.,  101 ;  1  Hale,  P.  C,  480,  pt.  1,  ch.  33. 


272  NOTICE    BY    WHICH    LIABILITIES   AKE    CREATED. 

without  allegation  or  proof  of  special  negligence  on  the  part 
of  such  owner.^  And  where  bees  inflicted  injuries  upon 
horses,  tlie  owner  of  the  latter  was  held  unable  to  recover 
from  the  owner  of  the  former  without  proof  of  notice  of 
the  mischievous  propensity  of  the  bees.^  But  the  notice 
which  is  sufficient  to  render  the  owners  of  dangerous  or 
mischievous  animals  responsible  is  exceedingly  informal. 
It  need  not  be  express  notice ;  may  be  inferred  from  the 
owner's  acquaintance  "with  the  offending  animal,  and  its 
notorious  disposition  to  evil. 

§  48()k.  Notice  of  Dangerous  Condition  of  Machinery  — 
Misconduct  of  Employees,  etc. —  Where  individuals  or  cor- 
porations are  engaged  in  occupations  which  are  from  their 
nature  fraught  with  unusual  danger  to  tlie  health  or  security 
of  others,  they  must  be  presumed  to  take  notice  of  the  in- 
juries likely  to  ensue  from  the  employment  of  the  means 
necessary  to  the  business,  so  far  as  to  impose  upon  them  the 
duty  of  care  proportioned  to  the  hazard,  and  for  want  of 
such  care  will  be  held  liable  to  those  injured  in  consequence 
of  the  owner's  negligence.^  Upon  the  other  hand,  when 
one  engages  in  a  hazardous,  though  lawful,  occupation,  as 
an  employee,  he  is  presumed  to  take  notice  of  the  incidental 
risks  of  the  business  in  which  he  encjao'es,  and  cannot  hold 
the  master  liable  for  injuries  naturally  resulting  by  accident 
therefrom.*  But  there  are  injuries  resulting  from  carrying 
on  a  lawfid  business,  in  consequence  of  particular  defects 
in  the  appliances  used  by  the  proprietor,  as  well  as  injuries 
from  the   negligence  or  wilful  misconduct  of  employees, 

I  Wolf  V.  Chalker,  31  Conn.,  121;  Lavorone  v.  Mangianti,  41  Cal.,  138. 
See  Besozzi  v.  Harris,  1  F.  &  F.,  92;  Van  Lenven  v.  Lyke,  1  N.  Y.,  515; 
Rex  V.  Huggins,  Ld.  Eaym.,  1583;  Canefox  v.  Crenshaw,  24  Mo.,  199; 
2)0st,  %  695. 

-'Earl  V.  Van  Alstine,  8  Barb.,  630. 

3111.  Cent.  R.  Co.  v.  McClelland,  42  111.,  355;  Frankford,  etc.,  Co.  v. 
Philadelphia,  etc.,  R.  Co.,  54  Pa.  St.,  345;  Anderson  v.  Cape  Fear,  etc., 
Co.,  64  N.  C,  399;  Spalding  v.  Chicago,  etc.,  R.  Co.,  30  Wis.,  110;  Hoyt 
V.  Jeffers,  30  IMich.,  181. 

*  Cooley  on  Torts,  641. 


NOTICE  BT  WHICH  LIABILITY  FOR  TOET  MAT  BE  FIXED.       273 

"whicli  may  be  inflicted  upon  those  who  are  in  no  way  con- 
cerned in  the  business.  For  these  the  proprietor  may  be 
held  Hable.  But  if  such  liabihty  does  not  actually  depend 
upon  the  proprietor's  having  notice  of  the  defect,  or  the  in- 
competence of  the  employee,  proof  of  such  knowledge  or 
notice  would  at  least  have  a  tendency  to  aggravate  the  of- 
fense, and  affect  the  measure  of  damages  in  an  action 
brought  by  one  upon  whom  the  injury  was  inflicted.'  And 
when  the  question  of  notice  figures  in  this  manner  in  an 
action  for  a  wrong,  either  to  fix  the  liability  or  enhance 
the  damages,  notice  to  an  oiScer,  agent  or  servant  of  the 
wrong-doer,  when  such  officer,  agent  or  servant  is  placed  in 
charge  of  the  subject  concerning  which  the  notice  is  given, 
will  be  as  binding  as  though  notice  had  been  given  to  the 
defendant  in  person.^ 

iMalick  V.  Tower  Grove,  etc.,  R.  Co.,  57  Mo.,  17;  Baldwin  v.  Cassella, 
L.  R.,  7  Ex.,  325;  Hoyt  v.  Jeffers,  30  Mich.,  181. 
2Posf,  §  695. 
18 


274  NOTICE    BY    "SVniCII    LIABILITIES    AKE    CHEATED. 


YII.  Notice  By  "Which  Ceetain  Conteact  Liabilities  Mat 

BE  Fixed. 

^  480Z.     Contracts  of  Indemnity  —  Notice  of  Suit. 
480m.  Measure  of  Damages  Affected  by  Notice. 
480n.    Notice    of  Customs  that  Affect  Contracts  —  General  Usages 

and  Customs. 
480o.    Knowledge  or  Notice  Must  be  Previous  to  the  Transaction. 

§  4801.  Contracts  of  Indemnity  —  Notice  of  Suit.—  The 

subject  of  this  title  embraces  in  a  general  way  that  which 
has  been  more  particularly  considered  in  another  place.  ^ 
"When  the  contract  of  indemnity  is  of  the  most  general 
character,  against  loss  of  any  kind,  whether  it  embraces 
stipulations  for  notice  in  case  of  loss  or  not,  it  goes  without 
saying,  that,  before  the  party  indemnified  can  recover,  he 
must  give  notice  of  his  loss  to  the  indemnitor.  As,  for  ex- 
ample, contracts  of  insurance  and  the  like.  "Where  notice 
is  expressly  stipulated  for,  as  is  usually  the  case,  the  want 
of  it  will  defeat  the  action.^  "When  the  contract  is  to  in- 
demnify a  purchaser  or  surety  against  the  result  of  a  suit, 
the  covenantee  has  a  right  to  defend,  either  in  the  action 
against  which  he  undertakes  to  indemnify,  or  the  action  on 
his  contract.  Hence,  to  bind  him  by  the  judgment  against 
the  indemnified  party,  he  must  have  due  and  timel}^  notice 
of  the  action,  to  the  end  that  he  may  make  his  defense ;  ^ 
otherwise,  when  the  party  to  be  indemnified  brings  his  ac- 
tion against  the  indemnitor,  the  latter  is  at  liberty  to  defend 
against  the  demand,  and  will  not  be  concluded  by  the  judg- 
ment.'* 

1  Ante,  §§  444  et  seq.,  480c  et  seq. 

2  Bridgeport  Ins.  Co.  v.  Wilson,  34  N.  Y.,  275. 

SRapelye  v.  Pi-ince,  4  Hill,  119;  Chamberlain  v.  Godfrey,  36  Vt.,  380; 
Patton  V.  CaldweU,  1  Ball.,  419;  Thomas  v.  Hubbell,  15  N.  Y.,  405, 

4  Smith  V.  Compton,  8  B.  &  Ad.,  407;  Marltalet  v.  Clary,  20  Ark.,  251 ; 
Boyd  V.  Whitfield,  19  Ark.,  447;  Ti-ain  v.  Gold,  5  Pick.,  380;  Reggio  v. 
Braggiotti,  7  Cush.,  166;  Collingwood  r.  Irwin,  3  Watts,  306;  Baynard 
f.  Harrity,  1  Houst.,  200. 


NOTICE  BY  WHICH  CONTKACT  LIABILITIES  MAY  BE  FIXED.       2  75 

§  480m.  Measure  of  Damages  Affected  by  Notice. —  In 

an  action  brouglit  on  a  contract  of  indemnity  against  the 
result  of  a  suit,  the  measure  of  damages  is  sometimes  held 
to  be  fixed  by  notice.  Thus,  where  a  surety  is  sued  on  his 
undertaking,  it  is  decided  that  he  is  under  no  obligation  to 
pay  it  to  save  costs,  at  least  not  unless  he  is  expressly  noti- 
fied that  the  principal  has  no  defense  to  the  demand.  And 
if  the  debt  .or  demand  is  liquidated,  it  is  not  his  duty  to 
make  a  defense  in  order  to  entitle  him  to  recover  against 
his  indemnitor  the  costs  paid  in  case  of  default.'  But  where 
the  action  is  on  an  unliquidated  demand,  or  the  liability  is 
disj)utable,  the  general  rule  seems  to  be  that  the  defendant 
may  give  notice  to  the  party  whose  duty  it  is  to  indemnify, 
and  not  defend  the  action  unless  so  directed ;  or  he  may  use 
his  best  judgment  in  the  matter,  if  the  facts  seem  to  war- 
rant a  defense,  holding  the  principal,  or  indemnitor,  for 
the  costs  and  expenses  of  the  suit.-  The  most  that  notice 
of  the  suit  from  the  indemnified  party  can  do  to  affect  the 
measure  of  damages,  in  his  action  on  the  contract  of  indem- 
nity, is  (1)  by  making  the  judgment  binding  on  the  indem- 
nitor whatever  be  the  amount,  and  (2)  by  throwing  upon 
the  indemnitor  the  responsibility  of  deciding  to  what  extent 
costs  shall  be  incurred  in  defending  the  original  action. 

§  4r80ii.  Notice  of  Customs  that  Affect  Contracts  — 
General  Tsages  and  Customs. —  When  a  custom  or  usage 
is  general,  in  the  broadest  sense  of  the  term,  it  will  be  bind- 
ing upon  all,  upon  the  presumption  that  it  is  known  to 
every  one.^  But  the  term  "  general,"  as  applied  to  customs 
and  usages,  has  a  qualified  signification.  When  it  is  so 
general  as  to  apply  to  every  person  everywhere,  it  is  held 

1  Baker  v.  Martin,  3  Barb.,  634;  Elwood  v.  Deifendorf,  5  Barb.,  412; 
Holmes  v.  Weed,  24  Barb.,  546;  Wright  v.  Whiting,  40  Barb.,  240; 
Hulett  V.  Soullard,  26  Vt.,  295;  Blenden  v.  Charles,  7  Bing.,  246;  Craig 
V.  Craig,  SRawle,  91;  Coulter  v.  Morgan's  Adm'r,  12  B.  Mon.,  278. 

2Duxbiiry  v.  Vermont,  etc.,  E.  Co.,  26  Vt.,  751 ;  Pitkin  v.  Leavitt,  13 
Vt.,  379;  Wynn  v.  Brooke,  5  Eawle,  106;  Dubois  v.  Hermance,  56  N.  Y., 
673;  Westfield  v.  Mayo,  122  Mass.,  100;  Ottumwa  v.  Parks,  43  la.,  119. 

3  Tyson  v.  Smith,  1  Nev.  &  P.,  784. 


276  NOTICE   BY    WHICH    LIABILITIES   AKE   CREATED. 

to  amount  to  the  common  law.'  A  local  or  particular  cus- 
tom is  general  witliiii  the  community  where  it  prevails,  and 
must  be  general  to  this  extent  in  order  to  be  valid  and  bind- 
ing upon  those  who  are  not  specially  notified  of  its  exist- 
ence.' 

When  a  custom  of  trade  is  general  within  a  particular 
city,  it  will  be  presumed  to  be  known  to  those  dealing  at 
that  market,  whether  as  buyer  or  seller.  But  proof  of  the 
existence  of  a  custom  in  several  cities  will  not  suffice  to 
establish  a  general  custom  upon  the  river  where  such  cities 
are  situated,'  • 

When  one  is  to  be  affected  by  a  certain  usage  or  custom, 
he  must  have  knowledge  or  notice  of  its  existence,  and  the 
only  difference  between  general  and  particular  usages  in 
this  respect  is  in  the  circumstances  from  which  this  knowl- 
edge will  be  presumed.  Every  custom  is  both  general  and 
particular,  depending  upon  the  relation  which  it  bears  to 
the  persons  to  be  affected.  The  custom  of  merchants  in  a 
particular  city  is  general  in  its  effects  upon  those  dealing 
there,  and  particular 'as  to  the  rest  of  the  world.  The 
usages  of  a  bank  are  general  in  reference  to  its  own  custom- 
ers, and  particular  as  they  affect  strangers.  In  either  case 
those  without  the  purview  of  the  notice  in  a  general  way 
can  only  be  affected  where  they  have  particular  notice.  In 
any  event,  there  must  be  knowledge,  either  actual  or  pre- 
sumed.*   And  where  it  is  a  particular  custom  of  a  certain 

1  Fitch  V.  Rawling,  2  H.  Black.,  393, 

2 Citizens'  Bank  v.  GraflSin,  31  Md.,  507;  Folsom  v.  Merchants',  etc., 
Ins.  Co.,  38  Me.,  414;  Commonwealth  v.  Mayloy,  57  Pa.  St,,  291;  Oel- 
ricks  V.  Ford,  33  How.,  49;  Richardson  v.  Goddard,  23  How.,  44;  Coff- 
man  v.  Campbell,  87  lU.,  98;  Taunton  Copper  Co.  v.  Merchants'  Ins.  Co., 
23  Pick.,  108;  Gleason  v.  Walsh,  43  Me.,  397;  Perkins  v.  Jordon,  35  Me., 
23;  Thompson  v.  Hamilton,  13  Pick.,  436;  Clark  v.  Baker,  11  Mete. 
(Mass.),  188. 

3  Walsh  V.  Frank,  19  Ark,,  270, 

*  Dodge  V.  Favor,  15  Gray,  83;  Fisher  v.  Sargent,  10  Cush.,  250;  Mar- 
lin  V.  Maynard,  16  N,  H.,  165;  Pierce  v.  Whitney,  29  Me.,  188;  Martin 
V.  Hall,  26  Mo.,  386;  Walsh  v.  Miss.  Trans.  Co.,  52  Mo.,  434;  Bradley  v. 
Wheeler,  44  N,  Y.,  500;  Dawson  v.  Kittle,  4  HiU,  107;  WhiteseU  v. 


NOTICE  BY  WHICH  CONTKACT  LIABILITIES  MAY  BE  FIXED.      277 

branch  of  business,  it  is  not  presumed  to  be  known  even  to 
dealers  ^  who  would  be  affected  by  the  general  usages  of  the 
same  business  without  proof  of  notice,'^ 

§  480o.  Knowledge  or  Notice  Must  be  Preyious  to  the 
Transaction. —  Whether  the  knowledge  of  the  custom  with 
which  it  is  sought  to  affect  a  party  in  a  particular  trans- 
action is  actual  or  presumed,  it  must  be  prior  to  the  trans- 
action in  which  the  question  of  liability  is  raised.  If  the 
presumption  of  knowledge  is  based  upon  the  fact  that  the 
party  to  be  charged  is  a  dealer  or  customer,  this  relation 
must  have  previously  existed.  Thus,  where  it  was  sought  to 
charge  a  servant  with  notice  of  a  custom  to  give  notice 
prior  to  quitting  the  employ  of  the  master,  it  was  held  that 
he  must  have  had  notice  of  such  a  custom  at  the  time  of 
entering  upon  the  service.  And  hence  the  fact  that  the 
servant  was  in  the  employ  of  the  master  could  not  be  relied 
on  as  raising  a  presumption  of  knowledge.*  Where  interest 
was  charged  on  an  account,  under  an  alleged  custom  among 
merchants  to  charge  interest,  and  it  appeared  that  no  such 
charge  had  been  made  against  defendant  on  similar  ac- 
counts, it  was  held  that  he  was  not  bound  by  the  custom.* 
The  case  was  different  where,  in  a  subsequent  case,  it  was 
found  that  not  only  was  the  custom  uniform,  but  that  inter- 
Crane,  8  W.  &  S.,  369;  Patterson  v.  Franklin  Ins.  Co.,  23  Pittsb.  L.  J., 
201 ;  Lewis  v.  The  Success,  18  La.  An.,  1 ;  Boyd  v.  Graham,  5  Mo.  App., 
403;  Sugart  v.  Mays,  54  Ga.,  554;  Scott  v.  Whitney,  41  Wis.,  504;  Power 
V.  Kane,  5  Wis.,  265;  Bliven  v.  New  England  Screw  Co.,  23  How.,  420; 
National  Bank  v.  Burkliardt,  100  U.  S.,  686;  Dugai-d  v.  Edwai'ds,  50 
Bai-b.,  289;  Pitre  v.  Offut,  21  La.  An.,  679. 

1  Williams  v.  Niagara  F.  Ins.  Co.,  50  Iowa,  561;  Carter  v.  Boelim,  3 
Burr.,  1905;  Stebbins  v.  Globe  Ins.  Co.,  2  Hall,  632;  Taylor  v.  Mtna 
Life  Ins.  Co.,  13  Gray,  434;  Howard  v.  Great  Western  Ins.  Co.,  109 
Mass.,  384. 

2  Grant  v.  Lexington  Fire  Ins.  Co.,  5  Ind.,  23 ;  Toledo,  etc.,  Ins.  Co.  v. 
Speares,  16  Ind.,  52. 

3  Stevens  v.  Reeves,  9  Pick.,  198;  Collins  v.  New  England  Iron  Co.,  115 
Mass.,  23, 

« Wood  V.  Hickok,  2  Wend.,  501.  See,  also,  Trotter  v.  Grant,  3  Wend., 
413. 


278  NOTICE   BY   WHICH   LIABILITIEa   AEE   CEEATED. 

est  had  been  charged  in  former  accounts,  and  paid  by  the 
defendant.' 

A  single  case  of  dealing  with  a  particular  establishment 
will  not  raise  the  presumption  of  knowledge  of  its  usages 
and  customs,  so  far  as  such  knowledge  apphes  to  customers 
or  those  dealing  with  such  establishment.  Thus  where,  in 
response  to  a  written  circular  from  a  hrm  of  stock  brokers, 
guaranteeing  a  fluctuation  of  eight  per  cent,  on  sixty-day 
"  straddle  "  contracts  to  a  certain  amount,  a  new  customer 
sent  the  brokers  the  required  amount  for  such  investment, 
and  during  the  sixty  days  the  stock  purchased  rose,  but  the 
brokers,  according  to  a  custom,  had  sold  the  same  stock 
"  short,"  prior  to  purchasing,  and  thereby  lost,  it  was  held 
that  the  customer,  being  ignorant  of  such  usage,  was  not 
bound  by  it,  but  might  claim  under  his  contract.- 

There  is  no  legal  presumption  that  a  traveler  who  alights 
at  an  inn  has  knowledge  of  the  particular  usages  of  that 
particular  inn.^  ^Nevertheless,  there  are  numerous  and  well 
supported  decisions  to  the  effect  that  those  who  send  goods 
to  a  particular  market,  even  for  the  first  time,  or  engage  in 
the  peculiar  dealings  of  any  business  house  that  has  certain 
customary  methods  of  carrying  on  its  trade,  will  be  bound 
by  such  customs,  upon  the  presumption  that  they  made 
themselves  acquainted  with  them  before  contracting.^  Thus, 
when  a  note  is  made  for  the  purpose  of  being  negotiated  at 
a  particular  bank,  a  general  custom  of  the  bank,  which  is 
not  contrary  to  law,  in  respect  to  the  demand  of  payment 
and  notice  of  dishonor,  will  bind  the  parties  on  the  presump- 
tion that  they  were  acquainted  with  it.^    But  to  have  this 

iMerch  v.  Smith,  7  Wend.,  315. 

2HaiTis  V.  Tumbridge,  8  Abb.  N.  C,  291. 

-Berkshire,  etc.,  Co.  v.  Proctor,  7  Cush.,  417. 

*Lonergan  v.  Stewart,  55  111.,  44;  Bailey  v.  Bensley,  87  El.,  556; 
Graves  v.  Legg,  11  Exch.,  643;  Sutton  v.  Tatham,  10  Ad.  &  Ell.,  27. 

SRenner  v.  Bank  of  Columbia,  9  Wheat.,  583;  Mills  v.  Bank  of  United 
States,  11  Wheat.,  431;  Dorchester  v.  New  England  Bank,  1  Cush.,  177; 
Smith  V.  Whiting,  13  Mass.,  6;  Bank  of  Columbian.  Fitzhugh,  1  Har.  & 
G.,  239;  Bank  of  Washington  v.  Triplett,  1  Pet.,  25. 


NOTICE  BY  WHICH  CO^STTRACT  LIABILITIES  MAY  BE  FIXED.       270 

effect  the  custom  must  be  notorious  from  constant  and  fre- 
quent use  for  a  considerable  time,  unless  it  can  be  shown  to 
have  been  known  to  the  party  to  be  charged.  A  practice 
adopted  by  a  bank  for  but  tAvo  years,  within  which  time 
there  were  but  four  instances  of  its  use,  was  held  to  be  want- 
ing in  notoriety.^ 

Where  one  employs  a  broker,  who  is  a  member  of  the 
stock  exchange,  to  bu}^  or  sell  stocks,  he  must  be  presumed  to 
authorize  such  broker  to  transact  his  business  according-  to 
the  general  usages  and  customs  of  the  institution  with  which 
he  is  connected.- 

Where,  however,  the  business  transacted  is  with  no  refer- 
ence to  a  particular  bank,  the  party  cannot  be  presumed  to 
have  any  knowledge  of  its  customs,  and  can  only  be  affected 
thereby  on  proof  of  notice.  As,  where  a  check  was  drawn 
on  a  certain  bank,  and  passed  by  the  indorser  through 
another,  the  drawer  could  not  be  bound  by  the  existence  of 
a  custom  between  the  two  banks  of  which  he  had  no  pre- 
vious knowledge.' 

1  Adams  v.  Otterback,  15  How.,  539. 

2 Sutton  V.  Tatham,  10  Ad.  &  EL,  27;  Bayliffe  v.  Butterworth,  1  Exch., 
425;  Walls  v.  BaHey,  49  N.  Y.,  464. 

3 Mohawk  Bank  v.  Broderick,  13  Wend.,  133.  See,  also,  Lime  Rock 
Bank  v.  Hewett,  52  Me.,  51 ;  Overman  v.  Hoboken  City  Bank,  30  N.  J. 
L.,  61. 


CHAPTER  YIIL 


NOTICE  BY  WHICH  LIABILITY  IS  EXTINGUISHED  OR  MODI- 
FIED. 

I.  Dissolution  of  Partnekship. 
n.  Notice  Limhtng  the  Liability  of  Common  Caerieks  and  Otheb 

Bailees. 
III.  Landlord  and  Tenant. 


I.  Dissolution  of  Paetneeship. 

§  481.  General  Nature  of  Partnership. 

483.  Range  of  Inquiry. 

483.  Reason  for  Requiring  Notice  of  Dissolution. 

484.  Personal  Notice,  Oral  or  Written. 

485.  Knowledge  Derived  from  Circumstances. 

486.  Use  of  Name  After  Retii-ement. 

487.  Effect  of  Legal  Notice  of  Dissolution. 

488.  Corporation  Using  Partnership  Name. 

489.  Notice  Unnecessary  to  Those  Ignorant  of  the  Partnership, 

490.  Illustration  of  Above. 

491.  General  Knowledge  of  Pai-tnership  Su£B.cient. 

492.  Dormant  Partner. 

493.  Dormant  with  Respect  to  Particular-  Ti-ansaction. 

494.  Must  be  Unknown. 

495.  Known  to  Some,  Unknown  to  Others. 

496.  Dissolution  by  Death. 

497.  Dissolution  by  Bankruptcy. 

498.  Effect  Upon  Surviving  or  Solvent  Partners. 

499.  Manner  of  Giving  Notice. 

500.  Communication  by  Mail. 

501.  Not  Conclusive  Unless  Received. 

502.  To  Agent  or  Servant. 

503.  Altering  Signs,  etc. 

504.  Public  Advertisement. 

505.  PubUcation  Insufficient. 

506.  Reading  Paper  Not  Conclusive. 

507.  Inference  Drawn  from  Publication. 


DISSOLUTION   OF   PAHTNEKSHIP.  281 

§  508.  What  Are  Prior  Dealings. 

509.  Discounting  Notes. 

510.  Honoring  Successive  Drafts. 

511.  Renewal  of  Accommodation  Paper. 

512.  Single  Purchase. 

513.  Notice  to  New  Customers, 

514.  Time  of  Publication. 

515.  Publication  in  Newspaper. 

516.  Where  Published. 

517.  Selection  of  Newspaper. 

518.  Manner  Open  to  Inquiry. 

519.  English  and  American  Doctrine. 

520.  Liability  of  Eethmg  Partner  Affected  by  Subsequent  Conduct, 

521.  Estoppel. 

522.  Example  of  New  Customer  Entitled  to  Actual  Notice. 

523.  KJnowledge  of  Expiration  of  Partnership. 

524.  Notice  of  Limited  Partnersliip. 

525.  Special  Partnership. 

526.  Restrictions  and  Limitations. 

527.  Assu]nption  of  Excess  of  Authority  by  One  Partner, 

528.  Misapplication  of  Funds. 

529.  Effect  of  Dissolution  Upon  Guarantor. 

530.  Onus  Prohandi. 

§481.  General  Nature  of  Partnersliip. —  The  obliga- 
tions arising  out  of  the  relation  of  partnership  are  of  a 
very  peculiar  character.  This  relation  involves  a  greater 
degree  of  mutual  con  fidence  than  any  other  known  to  the 
law  which  is  formed  merely  for  business  purposes.  Each 
member  of  a  partnership  may  be  said  to  hold  all  that  he 
has  absolutely  at  the  mercy  of  each  of  his  copartners,  hm- 
ited  only  by  the  extent  of  the  credit  which  the  partnership 
can  command.  For  each  one  may,  by  his  contracts,  bind 
not  only  the  entire  firm  property,  but,  in  the  name  of  the 
partnership,  may  incur  liabilities  for  which  each  of  the 
others,  as  w^ell  as  himself,  will  be  individually  Uable.^  These 
liabilities,  once  incurred,  will  continue  until  discharged,  not- 
•withstanding  the  subsequent  dissolution  of  partnership.^  But 

1  Story  on  Part.,  §§  126-65. 

■^Ibicl,  §  834;  Aiken  v.  Thompson,  43  la.,  606. 


282  NOTICE  BY  wnicn  liabilities  extinguished. 

though  the  habilities  assumed  in  the  name  of  the  partner- 
ship cannot  be  shaken  off  by  any  one  of  such  partners 
merely  by  dissolving-  his  business  relations  with  the  others, 
he  may,  by  proper  notice,  modify  his  liability  for  future 
transactions,  or  escape  absolutely  all  responsibility  for  the 
contracts  to  be  entered  into  in  the  name  of  the  jjartnership 
after  the  severance  of  his  connection  therewith.^ 

§482.  Range  of  Inquiry. —  Our  inquiries  will  not  be 
confined  strictly  to  notice  of  dissolution,  but  will  extend  to 
notice  of  every  kind  that  has  for  its  purpose  the  limitation, 
qualification  or  termination  of  the  liability  of  copartners 
for  further  transactions  of  the  firm  of  which  they  are  mem- 
bers, whether  such  liability  be  general  or  special. 

§  483.  Reason  for  Requiring  Notice  of  Dissolution.^ 
The  reasons  are  obvious  for  requiring  notice  of  the  dissolu- 
tion of  the  partnership,  in  order  to  terminate  the  liabihty  of 
the  retiring  member  on  account  of  partnership  debts  con- 
tracted subsequent  to  his  retirement.  Having  held  himself 
out  to  the  world  as  a  partner  in  the  past,  he  has  thereby 
authorized  others  to  think  him  what  he  represents  himself 
to  be.  He  has,  by  his  own  act,  given  the  partnership  the 
credit  of  his  name,  and  so  long  as  such  partnership  exists, 
tliose  who  know  it  will  be  presumed  to  know  it  as  originally 
constituted,  until  informed  of  a  change  in  its  membership. 
To  hold  otherwise  would  cast  upon  those  who  have  deal- 
ings with  a  partnership  the  unusual  and  onerous  duty  of 
taking  cognizance  of  the  interior  working  of  the  affairs  of 
a  concern,  which  the  members  fail  to  disclose.  It  would 
shift  the  obligation  of  diligence  from  the  party  who  is  not 
only  primarily  interested,  but  who  is  so  peculiarly  situated 
as  to  incm*  no  hazard  except  from  his  own  negligence,  to 
him  who  is  only  secondarily  interested,  and  who  might  ex- 
ercise extraordinary  diligence  without  coming  to  a  knowl- 
edge of  the  fact.  Even  when  there  was  no  fraud  in  the 
concealment,  it  would  reverse  the  rule  that,  as  between  two 

iPars,  on  Part.,  411. 


DISSOLUTION    OF    PARTXEESHIP.  283 

innocent  persons,  he  should  suffer  whose  act  or  omission  was 
the  cause  of  the  injury.^ 

§  484.  Personal  Notice,  Oral  or  Written. —  Where  the 
notice  to  a  subsequent  creditor  is  actual,  in  the  narrow  sense 
that  it  is  personally  communicated  to  him,  it  may  be  either 
oral  or  written,  and  would  probably  be  sufficient  if  coming 
from  any  one  with  apparent  knowledge  of  the  fact. 

§485.  Knowledge  Derived  from  Circumstances.— The 
object  of  notice  being  to  convey  knowledge  of  the  dissolu- 
tion, any  circumstance  by  which  such  knowledge  may  be 
brought  home  to  the  subsequent  creditor  of  the  finn  will, 
in  general,  obviate  the  necessity  of  formal  notice.^  And 
the  question  of  knowledge  is  one  of  fact  and  not  of  law.^ 

§  486.  Use  of  Name  After  Retirement. —  The  only  event 
in  which  a  subsequent  creditor,  with  knowledge  of  a  prior 
dissolution,  may  hold  the  retiring  partner,  is  where,  not- 
withstanding the  retirement  of  the  partner,  so  far  as  his 
interest  is  concerned,  he  permits  his  name  to  be  used  as  a 
member,  for  the  purpose  of  giving  the  partnership  the 
credit  of  his  name,  thus  continuing  his  hability.  Where, 
in  case  of  such  a  dissolution,  the  retiring  partner  merely 
jpermits  the  use  of  his  name  in  connection  with  future  busi- 
ness of  the  partnership,  by  silent  acquiescence,  without 
any  express  agreement  to  that  effect,  it  has  been  held  that 
those  dealing  with  the  firm,  with  knowledge  of  the  formal 
dissolution  of  the  partnership  relation,  knowing  of  the  con- 
tinued use  of  the  name  of  such  retiring  partner,  have  a 
right  to  rely  upon  that  as  an  indication  that  he  consents  to 
remain  liable  for  the  future  contracts  of  the  partnership.^ 

iTombeckbee  Bank  v.  Dumell,  5  Mason,  56;  Lansing  v.  Gaine,  3 
Johns.,  300;  Le  Roy  v.  Johnson,  2  Pet.,  198;  Brown  v.  Leonard,  2  Chit., 
120;  Parkin  v.  Cari-uthers,  3  Esp.,  246;  Newsome  v.  Coles,  2  Camp., 
617 ;  Dolman  v.  Orchard,  2  Car.  &  P.,  104 ;  ZoUar  v.  Janvrin,  47  N.  H.,  324. 

2Irby  V.  Vining,  2  McCord,  379;  Hart  v.  Alexander,  2  M.  &  W.,  484; 
Prentiss  v.  Sinclair,  5  Vt. ,  149. 

SDeford  v.  Reynolds,  36  Pa.  St.,  325. 

4  Emmet  v.  Butler,  7  Taunt.,  599;  Mulford  v.  Griffin,  1  Fost.  &  F.,  145; 
Evans  v.  Drummond,  4  Esp.,  89;  Newmarch  v.  Clay,  14  East,  239; 


2Si  KOTICE    BY    WniCU    LIABILITIES    EXTINGUISHED. 

§  487.  Effect  of  Legal  Notice  of  Dissolution. —  It  has, 
however,  been  decided  elsewhere  that  one  having  knowl- 
edge of  the  prior  connection  of  the  retired  partner  with 
the  firm,  but  Avho  has  no  actual  notice  or  knowledge  of  the 
dissolution,  of  which,  however,  such  notice  as  is  prescribed 
by  law  has  been  given,  is  not  Avarranted  in  giving  credit  to 
the  new  firm  upon  the  faith  of  the  continued  use  of  the 
name  of  the  late  member  of  the  partnership,  merely  be- 
cause the  latter  has  taken  no  positive  measures  to  prevent 
its  continued  emploA'iiient  in  that  connection.'  This  de- 
cision is  grounded  upon  the  reason  that  as  the  retiring 
member  of  the  partnership,  upon  its  dissolution,  has  resorted 
to  all  the  precautions  pointed  out  by  the  laAv  as  requisite  to 
convey  the  necessary  information  to  creditors  of  that  class, 
he  could  not  be  accused  of  negligence,  nor  would  a  fraudu- 
lent intent  be  imputed  to  him  by  the  court,  merely  because 
he  did  not  seek  by  a  bill  in  equity  to  enjoin  the  further  use 
of  his  name  in  connection  with  the  business  from  which  he 
had  publicly  severed  his  connection. 

§  488.  Corporation  Using  Partnership  Name. —  But 
where  a  partnership  was  dissolved  by  the  organization  of 
its  constituent  members  into  a  private  corporation,  and  con- 
veying the  partnership  property  to  the  corporate  body,  and 
the  members  of  the  partnership  allowed  the  busines  to  be 
still  conducted  in  the  old  name,  they  were  justly  held  liable 
as  partnel's  to  one  who  had  no  notice  of  the  dissolution.^ 

§  489.  Notice  Unnecessary  to  Tliose  Ignorant  of  the 
Partnership. —  It  cannot  be  said  that  upon  the  dissolution 
of  a  business  partnership,  the  retiring  members  will  in  every 
instance  be  held  liable  for  the  future  contracts  or  acts  of 
the  firm,  where  notice  of  the  dissolution  is  neglected. 
Whether  such  liability  will  be  incurred  by  them  depends  in 
a  great  measure  upon  the  relations  between  the  new"  cred- 

Ketcham  v.  Clark,  6  Johns.,  144;  Aniidown  v.  Osgood,  24  Vt.,  278; 
Brown  v.  Leonard,  2  Chit.,  120;  Howe  v.  Thayer,  17  Pick.,  91. 

1  Newsome  v.  Coles,  2  Camp.,  617. 

2  Goddard  r.  Pratt,  16  Pick.,  413. 


DISSOLUTION   OF   PAKTNERSIIIP.  285 

iter  and  the  old  partnership.  It  would  be  going  an  un- 
reasonable length  to  hold  that,  merely  because  notice  of 
the  late  partners  retirement  is  not  given,  he  shall  be  held 
liable  to  those  who  have  subsequent  dealings  with  the  firm, 
in  ignorance  not  only  of  the  dissolution,  but  also  of  the 
fact  that  the  partnership  which  has  been  dissolved  ever  had 
an  existence.  It  has  therefore  been  held  that  in  order  to 
render  a  retired  partner  liable  to  those  having  subsequent 
dealings  with  his  successors  in  business,  three  facts  must 
concur:  1.  That  the  party  seeking  to  hold  him  must  have 
known,  at  the  time  he  dealt  with  the  firm,  of  the  former 
partnership.  2.  That  he  was  ignorant  of  the  dissolution ; 
and  3.  That  his  dealings  with  the  partnership  were  had 
supposing  that  he  was  contracting  with  the  retired  partner 
as  well  as  his  successors,  and  in  reliance  upon  then*  joint 
liability.'  It  was  also  held  that  general  notoriety  with  re- 
spect to  the  existence  of  the  partnership  which  had  been 
dissolved  without  notice  would  not  be  sufficient  to  supply 
the  place  of  knowledge.  The  transaction,  to  entitle  the 
creditor  to  enforce  his  remedy  against  the  retired  partner, 
jointly  with  those  continuing  the  business,  must  be,  on  the 
part  of  the  creditor,  based  upon  his  faith  in  the  solvency 
and  standing  of  the  party  he  seeks  to  hold.  He  could  not 
be  presumed  to  have  acted  upon  such  faith  unless  there  was 
some  antecedent  knowledge  of  the  fact  upon  which  he  is 
supposed  to  rely,^ 

§  490.  Illustration  of  Above. —  When,  therefore,  a  firm 
which  remains  after  the  dissolution,  as  the  successor  of  the 
partnership  dissolved,  whether  carrying  on  business  under 
the  same  or  a  different  name,  has  dealings  with  a  stranger, 
who  has  had  no  dealings  with  the  former  partnerehip,  and 
who  has  no  knowledge  of  such  partnership,  notice  of  any 
kind  is  unnecessary  in  order  to  enable  the  retiring  members 
of  the  old  concern  to  escape  hability  for  such  subsequent 
contracts ;  but  it  would  be  otherwise  held  where  the  party 

«  Pratt  V.  Page,  32  Vt.,  13. 
Ubid. 


286  NOTICE  BT  -wnicn  liabilities  extinguished. 

had  knowledge  of  the  partnership,  but  not  of  its  dissolu- 
tion.' 
§  41)1.  General  Knowledge  of  Partnership  Sufficient. — 

Bank  of  Brooldyn  v.  McChesney  ^  was  where  the  liability 
incurred  in  the  name  of  the  partnership,  after  former  disso- 
lution, Avas  by  a  promissory  note  made  in  the  name  of  the 
firm  by  one  of  the  partners  for  the  accommodation  of  a 
third  person.  The  note  was  taken  in  good  faith  by  one  who 
had  had  no  prior  dealings  with  the  partnership,  but  who 
knew  that  there  was  such  a  firm,  and  had  never  received 
any  information  of  its  dissolution.  There  being  neither 
actual  nor  constructive  notice  that  the  partnership  had  been 
dissolved  when  the  note  was  taken,  it  was  held  that  the 
retiring  partners  were  not  released  from  their  liability  by 
such  dissolution. 

§  492.  Dormant  Partner. —  A  dormant  partner  may  dis- 
solve his  connection  with  the  partnership,  and  in  so  doing 
escape  all  liability  on  account  of  the  future  transactions  of 
the  firm,  whether  with  new  or  old  customers,  by  giving 
notice  of  such  dissolution.^  The  reasons  for  excepting  a 
partner  of  this  kind  from  the  general  rule  are,  that,  as  his 
connection  with  the  firm  is  unknown,  his  liability  could  not 
be  said  to  depend  upon  the  fact  that  the  credit  was  given  to 
him.  His  liability  arises  from  the  fact  that  he  shares  the 
profits.  It  is  created  by  operation  of  law,  irrespective  of 
the  intention  of  the  parties.  When  his  interest  in  the 
profits  ceases,  the  reason  for  his  liability  is  removed,  and 
though  he  may  continue  to  be  liable  for  the  obligations 
incurred  by  the  partnership  during  his  connection  with  it, 
he  will  not  be  affected  by  those  growing  out  of  future  trans- 
actions.* 

1  Story  on  Part.,  §  160 ;  Chamberlain  v.  Dow,  10  Mich.,  319 ;  Warren  v. 
Ball,  37  111.,  76;  Evans  v.  Drummond,  4  Esp.,  89;  Newmarch  v.  Clay,  14 
East,  239, 

2  20N.  Y.,  240. 

3  Pars,  on  Part.,  497. 

4  Story  on  Part.,  §  159,  and  authorities  there  cited.  See,  also,  Warren 
V.  Ball,  37  111.,  76;  Newmarch  v.  Clay,  14  East,  239;  Kennedy  v.  Bohan- 
non,  11  B.  Mon.,  118;  Scott  v.  Colmesnil,  7  J.  J.  Marsh,,  416. 


DISSOLUTION   OF   PARTXEKSHIP.  287 

§  4:93.  Dormant  Avitli  Respect  to  Particular  Trans- 
action.—  It  was  accordingly  lield  that  the  attorney  whose 
partner  was  employed  in  the  management  of  a  suit,  being  a 
dormant  partner  with  respect  to  that  particular  business, 
would  not  be  liable  for  funds  coming  to  the  hands  of  his 
partner  as  the  fruits  of  such  litigation,  after  the  partnership 
between  them  had  been  dissolved,  although  notice  of  such 
dissolution  was  never  given.^ 

§494-.  Must  Ibe  Unlmown. —  But  in  order  to  constitute  one 
a  dormant  partner,  so  that  he  may  escape  liability  for  the 
future  transactions  of  the  firm  by  dissolution  without  notice, 
it  is  not  sufficient  that  his  name  does  not  appear  in  that  of 
the  firm.  To  be  a  dormant  partner,  he  must  not  only  be 
silent  in  the  sense  that  his  connection  with  the  partnership 
is  not  advertised,  but  such  connection  must  be  unknown. 
It  is,  therefore,  not  such  concealment  of  his  interest  as  will 
entitle  him  to  the  immunities  of  a  dormant  partnership, 
when,  instead  of  his  name  as  a  member  of  the  firm,  the 
usual  substitute  "  Co."  is  employed.-  It  was  also  held  that 
where  the  firm  was  styled  R.  M.  &  Co.,  the  me're  fact  that 
the  one  dealing  with  the  partnership  was  ignorant  of  the 
name  of  R.  M.'s  partner  would  not  render  such  partner 
dormant  within  the  meaning  of  the  law,  and  with  reference 
to  subsequent  dealings  with  such  party.^ 

§  495.  Known  to  Some,  Unknown  toOtliers. —  One  may 
be  a  dormant  partner  with  respect  to  certain  persons  with 
whom  the  firm  has  deahngs,  and  stand  upon  an  entirely 
different  footing  towards  others.  His  connection  with  the 
partnership  may  be  concealed  from  a  portion  of  the  public, 
while  others  are  fully  cognizant  of  his  interest  and  conse- 
quent responsibility.  And  the  fact  that  the  interest  of  a 
former  dormant  partner  was  known  to  one  person  with 
whom  the  firm  has  dealings  subsequent  to  the  dissolution 

1  Ayrault  v.  Chamberlin,  26  Barb.,  83. 

2Deford  v.  Reynolds,  36  Pa.   St.,  325;  Edwards  v.  McFall,  5  La.  An., 
167;  Magill  v.  Merrie,  5  B.  Mon.,  168;  Deering  v.  Flanders,  49  N.  H.,  225. 
3  Deford  v.  Reynolds,  supra. 


288  NOTICE   BY   WHICH   LIABILITIES    EXTINGUISnED, 

cannot  be  rendered  available  to  create  a  liability  against 
such  retired  partner,  and  in  favor  of  one  who  was  ignorant 
of  such  partnership  until  he  had  heard  of  its  dissolution.^ 

§  496.  Dissolution  by  Death. —  It  is  probably  Avell  set- 
tled that,  when  the  partnership  is  dissolved  by  the  death  of 
one  of  the  partners,  notice  of  such  dissolution  is  not  neces- 
sary in  order  to  exempt  his  estate  from  liability  for  the 
future  obUgations  of  the  partnership.^  The  only  known  ex- 
ception to  this  rule  is  where  a  surviving  partner  represents 
the  estate  of  the  deceased  partner  as  executor.  It  has  been 
held  that,  in  such  an  event,  as  the  surviving  partner,  in  his 
representative  capacity,  has  power  to  bind  the  estate  when 
notice  of  the  death  is  omitted^  such  notice  should  be  given 
to  those  having  dealings  with  the  fi.rm.^ 

§  497.  Dissolution  by  Bankruptcy. —  So,  also,  v.^hen  the 
partnership  is  dissolved  by  reason  of  the  bankruptcy  of  one 
of  its  members,  or,  as  it  has  been  styled,  his  "  quasi  death,"  ^ 
notice  is  unnecessary  to  prevent  his  estate  from  becoming 
liable  for  the  future  obligations  of  the  firm,  for  the  com- 
bined reasons  that  the  adjudication  is  a  notorious  fact,  and 
that  by  this  means  the  law  deprives  the  bankrupt  of  aU 
means  of  satisfying  such  liabilities/' 

§  498.  Effect  Upon  Surviving  or  Solvent  Partners. — 
As  to  whether  the  surviving  or  solvent  partners  would  be 
absolved  from  liabiUty  for  obligations  incurred  in  the  name 
of  the  partnership,  subsequent  to  dissolution  by  the  death  or 
bankruptcy  of  one  of  the  members  of  the  firm,  without  no- 
tice, express  or  imphed,  other  than  the  decease  or  adjudica- 
tion, much  would  probably  depend  upon  their  own  conduct 
with  respect  to  the  subsequent  management  of  the  business 

1  Cregler  v.  Durham,  9  Ind.,  375. 

2  Washburn  v.  Goodman,  17  Pick.,  519 ;  Webster  v.  Webster,  3  Swanst., 
491;  Murray  v.  Mumford,  6  Cow.,  441;  Burwell  v.  Mandeville,  2  How. 
(U.  S.),  560;  Canfield  v.  Hard,  6  Conn.,  180;  Parsons  on  Part.,  449;  Story 
on  Part.,  g§  319,  336,  339. 

3  Vulliamy  v.  Noble,  3  Meriv.,  593. 
*Pars.  onPai-t.,  474. 

5  Franklin  v.  Brownlow,  14  Ves.,  550;  Thomason  v.  Frere,  10  East,  418. 


DISSOLUTION?    OF   PAETNEKSHIP.  289 

in  wliich  the  partnership  was  engaged.  If  they  continued 
to  carry  on  the  business  as  before,  each  of  the  surviving  or 
solvent  members  of  the  firna  would  be  bound  by  subsequent 
contracts  made  in  the  name  of  the  partnership  as  it  existed 
prior  to  the  death  or  bankruptcy,  in  the  absence  of  notice  to 
the  contrary.  This,  however,  would  be  as  well  for  the  rea- 
son that  the  remaining  members  might  be  regarded  as  hav- 
ing entered  into  a  new  partnership,  under  the  old  name,  as 
because  of  a  failure  to  give  notice  of  the  dissolution.  Such 
a  continuation  by  them  might  be  looked  upon  as  notice  to 
the  world  of  the  formation  of  a  new  firm,  and  their  adoption 
of  the  name  of  the  old  for  the  sake  of  preserving  to  them- 
selves the  good  will,  and  those  who  had  actual  notice  of  the 
dissolution  might  extend  credit  to  them  under  their  former 
name,  relying  solely  upon  those  who  chose  to  continue  the 
business.  It  has  been  held,  however,  that  no  good  reason 
exists  for  requiring  notice  of  dissolution  by  death,  from  the 
survi^^ng  partners,  in  order  to  exempt  either  of  them  from 
liability  on  account  of  future  unauthorized  contracts  in  the 
name  of  the  old  firm.^  This  was  an  action  on  a  promissory 
note  given  by  a  surviving  partner  in  the  name  of  the  firm, 
and  the  doctrine  was  clearly  laid  down  by  Bigelow,  C.  J., 
in  rendering  the  opinion,  that  although  the  holder  had  taken 
the  same  witliout  knowledge  of  the  dissolution  by  death, 
the  surviving  partner  who  had  no  knowledge  of  the  giving 
of  such  note  could  not  be  held  responsible  thereon ;  and  for 
good  and  sufficient  reasons,  ably  set  forth  in  the  opinion, 
and  supported  by  authority,  gives  this  as  a  rule  applicable 
to  all  contracts  made  under  similar  circumstances.^ 

§499.  Manner  of  Giving  Notice. —  AVhere  notice  of  dis- 
solution is  requisite  in  order  to  exempt  the  retiring  partner 
from  liability  on  future  obligations  of  the  firm,  the  manner 
of  giving  such  notice  is  governed  to  a  considerable  extent  by 
the  relations  previously  existing  between  the  partnership 
and  the  party  asserting  the  claim;  but  actual  notice  will  be 

1  Marlett  v.  Jackman,  3  Allen,  287. 

2  1(1.,  p.  296. 

19 


290  KOTicE  BY  wnicn  liabilities  extinguished. 

suiRcient  in  all  cases,  whether  the  same  be  Avritten  or  oral, 
or  is  given  expressly  by  the  retiring  partner,  or  is  derived 
from  a  knowledge  of  circumstances  pointing  directly  to  the 
conclusion  that  such  partnership  has  been  dissolved.' 

§  500.  Commuiiicatioii  by  Mail. —  The  method  in  nearly 
all  cases  found  to  be  most  practicable  and  efficacious  for  the 
purpose  of  discharging  the  retiring  partner  from  future  ob- 
ligations is  by  addressing  to  the  party  to  be  notified  a  writ- 
ten communication  informing  him  of  the  fact  of  dissolution. 
Proof  of  notice  sent  to  and  received  by  him,  through  the 
mails,  or  served  upon  him  personally,  will  be  conclusive  upon 
him  for  all  time.- 

§  501 .  Not  Conclusive  Unless  Received. —  But  it  has  been 
held  that  mere  proof  of  the  sending  of  a  written  notice  by 
mail  will  not  be  sufficient  to  charge  the  party  to  whom  it  is 
addressed  with  knowledge  of  the  altered  relations  of  the 
partners.  This  manner  of  service  is  there  held  to  be  re- 
stricted in  its  conclusive  effect  to  cases  of  notice  of  the  dis- 
honor of  commercial  paper.  It  is  admitted,  however,  that 
the  mailing  of  a  written  notice  of  dissolution  to  one  having 
former  dealings  with  the  partnership  would  be  a  step  in  the 
direction  of  actual  notice,  and  slight  corroborative  evidence 
would  warrant  the  inference  that  such  notice  was  received 
and  the  party  duly  advised  of  the  change  of  firm ;  but  this 
inference  is  regarded  strictly  as  one  of  fact,  and  not  of  law.* 

§  502.  To  Agent  or  Servant. —  Howsoever  indulgent  the 
courts  may  be  in  the  matter  of  giving  notice  of  dissolution, 
vrith  reference  to  the  means  employed,  it  is  nevertheless  re- 
quired, where  actual  notice  is  relied  on,  that  it  shall  be  com- 
municated to  the  party  to  be  affected  thereby.  It  will  not 
be  sufficient  if  communicated  to  a  mere  servant  or  employee, 
unless,  from  the  nature  of  his  employment,  his  agency  ex- 

1  Robb  V.  Mudge,  14  Gray,  534;  Langeu.  Kennedy,  20  Wis.,  279;  Davis 
V.  Keyes,  38  N.  Y.,  94;  Yoiing  i\  Tibbitts,  32  Wis.,  79.  But  see  Ran- 
som V.  Loyless,  49  Ga.,  471 ;  Pars,  on  Part.,  411. 

-'Kenney  v.  Altvater,  77  Pa.  St.,  34. 

Uhid. 


DISSOLUTION    OF   TARTNEESHIP.  291 

tends  to  the  particular  transaction  to  be  affected  by  the 
notice.  Accordingly,  where  the  retired  partner  went  to  the 
place  of  business  of  one  with  whom  the  firm  had  had  prior 
dealings,  and,  on  being  accosted  by  a  salesman,  informed 
such  salesman  that  he  had  not  come  to  purchase,  but  to 
inform  the  house  that  the  partnership  theretofore  existing 
had  been  dissolved,  it  was  held  that  this  was  not  sufficient 
to  charge  the  employers  of  such  salesman  with  actual  notice 
of  the  retirement  of  such  partner,  so  as  to  exonerate  him 
from  liability  on  a  note  subsequently  given  by  his  successor 
in  the  name  of  the  firm.  A  failure  to  show  that  the  fact 
was  communicated  by  the  salesman  to  his  employer  left  it 
incumbent  upon  the  party  seeking  to  avail  himself  of  such 
notice  to  prove  that  the  authority  of  the  agent  extended  to 
the  acceptance  of  notice  of  dissolution.' 

§  503.  Altering  Signs,  etc. —  Another  method  which  is 
equally  binding  upon  those  cognizant  of  its  adoption,  and 
which  is  even  more  general  than  that  of  pereonal  notice,  is 
by  altering  the  name  of  the  firm  on  the  signs  and  in  all  the 
correspondence  carried  on  with  their  customers,  together 
with  a  public  advertisement  of  the  dissolution  in  one  or 
more  public  newspapers.^  One  having  dealings  with  the 
new  firm  by  means  of  epistolary  correspondence,  where 
the  letters  exchanged  would  show  upon  their  face  that  one 
of  the  former  members  had  retired  from  the  concern,  would 
seem  to  be  estopped  from  claiming  that  in  so  dealing  he  re- 
lied upon  the  responsibility  of  such  retired  partner.^ 

§  504.  Public  Advertisement. —  The  authorities  are  not 
in  entire  accord  as  to  the  effect  of  a  public  advertisement  of 
dissolution,  as  notice  to  those  who  have  had  prior  dealings 
with  the  partnership.  It  seems  to  be  generally  agreed  that 
the  publication  of  such  notice  will  not  affect  them  unless  it 
appears  that  they  were  in  the  habit  of  receiving  and  reading 


1  Stewart  v.  Sonneborn,  49  Ala.,  178. 
-Jenkins  v.  Blizard,  1  Stark.,  418. 
3  Pars,  on  Part.,  411. 


292  NOTICE   BY    WIIICU    LIAUILITIES    EXTINGUISHED. 

the  papers  in  which  the  notices  appear.*  The  weight  of  au- 
thority, however,  goes  farther  in  restricting  the  operation 
of  such  published  notice,  holding  that  it  will  not  be  avail- 
able against  one  who  had  had  prior  deahngs  with  the  part- 
nership, unless  it  is  shown  that  he  has  actually  read  the 
notice  as  published.- 

§  505.  PuWication  Insufficient. —  It  was  accordingly 
held  in  Lyon  v.  Johnson,'  that  the  fact  of  notice  of  dissolu- 
tion being  published  in  a  paper  circulated  where  the  busi- 
ness of  the  firm,  and  also  that  of  the  party  with  whom  the 
dealings  were  had,  was  carried  on,  and  such  paper  was  taken 
by  the  party  giving  such  credit,  together  with  the  further 
fact  that  the  notice  was  printed  directly  adjoining  the  ad- 
vertisement of  the  dealer,  would  not  raise  a  presumption 
suflBciently  strong  to  overcome  the  fact  that  such  dealer 
had  no  actual  notice.  In  other  words,  it  was  not  sufiBcient 
of  itself  to  constitute  notice  to  such  dealer.  It  was  here  ad- 
mitted, however,  that  these  facts,  in  conjunction  with  the 
lapse  of  time  and  other  circumstances,  might  be  regarded 
as  evidence  tending  to  prove  the  ultimate  fact.  But,  upon 
the  other  hand,  the  circumstance  that  the  credit  was  given 
to  the  old  firm  would  have  a  tendency  to  show  his  Avant  of 
knowledge  of  the  altered  relations  of  the  members  of  the 
partnership.* 

§506.  Reading  Papers  Not  Conclusive. —  There  seems 
to  be  no  doubt  that  the  mere  fact  that  the  prior  dealer  sub- 
scribes for  and  reads  the  paper  containing  the  notice  will 
not  raise  the  legal  inference  of  actual  notice.*  And  although 
it  would  not  be  proper  to  reject  evidence  of  such  pubhcation 

iGalway  v.  Mathew,  1  Camp.,  403;  S.  C,  10  East,  264. 

2HutcliiBS  V.  Hudson,  8  Humph.,  426 ;  Hutcliins  v.  Bank  of  Tenn.,  id., 
418;  Little  v.  Clarke,  36  Pa.  St.,  114;  Boyd  v.  McCann,  10  Md.,  118; 
Simonds  v.  Sti-ong,  24  Vt.,  643;  Shurlds  v.  Tilson,  2  McLean,  458. 

8  28  Conn.,  1. 

*  See,  also,  as  to  effect  of  reading  the  paper  containing  the  notice,  Ver- 
non V.  Manliattan  Co.,  23  Wend.,  183. 

^ReUley  V.  Smith,  16  La.  An.,  31 ;  Watkinson  v.  Bank  of  Pennsylvania, 
4  Whart.,  482;  Shurlds  v.  Tilson,  2  McLean,  458. 


DISSOLUTION    OF   PAETNEESHIP.  293 

and  the  taking  and  reading  of  the  paper  by  the  dealer,  still 
the  jury  should  be  instructed  that  the  mere  taking  of  the 
paper  was  not  of  itself  actual  notice,^ 

§  507.  Inference  Drawn  from  Publication. —  Although 
the  pubhcation  of  notice  cannot,  as  an  inference  of  law,  be 
taken  as  actual  notice  of  dissolution  to  those  who  have  had 
prior  dealings  with  the  partnership,  it  has  been  held  that 
such  a  publication  might  lay  the  foundation  for  an  inference 
of  fact  that  such  notice  had  been  actually  given.  The  case 
was  one  where  an  action  was  brought  on  a  note  given  in 
the  name  of  D.  &  T.,  a  partnership  originally  composed  of 
two  members,  but  which  had  ceased  to  exist,  as  its  members 
had  discontinued  the  business  under  that  name,  prior  to  the 
execution  of  the  note  by  D.  The  st^ie  and  constituency  of 
the  firm  were  changed  by  taking  in  a  new  member,  after 
which  the  house  was  known  as  "  D.,  T.  &  C."  It  appeared 
in  evidence  that  there  was  published  at  the  request  of  the 
new  firm,  in  a  newspaper  printed  and  circulated  in  the  place 
where  the  business  was  conducted,  the  following  notice: 
"  Change  of  Firm  —  It  will  be  seen  by  our  advertising 
column  that  D.  &  T.  have  taken  Mr.  D.  C.  C.  into  partner- 
ship in  the  marine  elevator  and  coal  business,  AVe  con- 
gratulate the  weU-known  firm  on  the  accession  of  so 
energetic  a  business  man  as  Mr.  C.  Together  thev  wiU 
make  a  strong  team."  It  was  also  testified  by  the  holder  of 
the  note  himself  that  he  was  in  the  habit  of  taking  and 
reading  the  paper  in  which  this  notice  appeared,  prior  to  the 
date  of  the  note.  The  court  held,  in  substance,  that  the 
jury  might  have  found  from  this  that  when  the  party  took 
the  note  he  had  read  the  notice ;  and  although  it  was  not 
a  positive  statement  from  the  parties  interested  of  the 
change  of  firm,  yet  it  was  suflBcient  to  put  an  ordinarily 
prudent  and  cautious  man  upon  inquir\\  leading  to  a  knowl- 
edge of  such  change,  and  would  therefore  justify  the  jury 
in  inferrine:  that  the  note  was  taken  with  actual  notice  or 

1  Watkinson  v.  Bank  of  Pennsylvania,  4  Whart.,  483. 


294  NOTICE    BY   WHICH   LIABILITIES   EXTINGUISHED. 

knowledo;e  that  there  was  then  no  such  firm  in  existence  as 
that  in  the  name  of  which  the  instrument  was  executed.' 

§  508.  What  Are  Prior  Dealings. —  This  being  the  rule 
as  to  those  who  have  had  prior  dealings  with  the  partner- 
sliip,  it  becomes  a  question  of  some  importance  as  to  what 
amounts  to  such  prior  dealings  as  would  entitle  them  to 
actual  notice.  Where  the  dealings  have  been  directly  be- 
tween the  party  claiming  the  advantages  of  this  position, 
and  the  partnership,  as  by  selling  goods  to  the  firm,  or  mak- 
ing advances  of  cash,  discounting  paper  for  them,  or  any 
similar  transaction  in  which  the  parties  meet  or  confer  to- 
gether in  the  capacities  of  bargainor  and  bargainee,  there 
can  be  no  difficulty  in  reaching  the  conclusion  that  they  are 
such  prior  dealings  as  would  entitle  the  party  to  receive 
actual  notice  of  such  dissolution.  But  where  the  only  prior 
dealing  consisted  in  discounting  a  note  bearing  the  name  of 
the  firm,  such  discount  being  made  for  another  party,  this 
was  held  not  to  amount  to  such  "  prior  dealings  "  as  would 
entitle  the  party  discounting  the  paper  to  be  actually  noti- 
fied of  the  dissolution,  or  for  the  want  of  such  notice  to 
pursue  his  remedy  against,  the  retiring  partner.^ 

§  509.  Discounting  Notes. —  But  where  one  of  the  mem- 
bers of  a  firm  took  a  note  to  a  bank  for  discount,  and  it  was 
discounted  on  the  faith  of  the  firm's  indorsement,  this  was 
held  such  prior  dealings  with  the  partnership  as  would  en- 
title the  bank  to  actual  notice  of  the  subsequent  dissolution, 
in  order  to  exonerate  the  retiring  partner  from  liability  for 
transactions  by  his  successor  in  the  name  of  the  firm.^ 

§510.  Honoring  Successive  Drafts. —  And  where  the 
bank  held  a  succession  of  drafts,  accepted  by  the  firm  be- 
fore dissolution,  which  drafts  had  been  paid  to  the  bank  by 
the  firm,  this  was  held  such  prior  dealings  with  the  firm  as 


1  Young  V.  Tibbitts,  32  Wis.,  79. 
-  Bank  of  Brooklyn  v.  McChesney,  20  N.  Y.,  240. 
3  Bank  of  Commonwealth  v.  Mudgett,  45  Barb.,  663;  S.  C,  44  N.  Y., 
614,  where  judgment  was  affirmed  on  appeal. 


DISSOLUTION    OF   PAETNEESHIP.  295 

would  entitle  the  bank  to  actual  notice,  as  distinguished 
from  a  publication  in  a  newspaper.^ 

§  511.  Renewal  of  Accommodation  Paper. —  So,  where 
a  note  was  given  to  the  bank  by  a  member  of  the  firm,  for 
the  accommodation  of  a  third  party,  and  several  times  re- 
newed in  the  name  of  the  firm,  though  the  retmng  partner 
had  nothing  to  do  Avith  the  giving  or  renewal  of  the  note, 
this  was  held  such  a  prior  transaction  as  would  require  the 
retiring  partner  to  give  actual  notice  of  a  dissolution  of  the 
partnership,  in  order  to  discharge  himself  from  liability  for 
a  renewal  subsequent  to  his  retirement.- 

§  5 1 2.  Single  Purcliase.^ —  In  order  to  constitute  one  such 
a  creditor  as  has  had  prior  dealings  with  the  firm,  that  he 
may  be  protected  in  giving  credit  upon  the  faith  of  the  part- 
nership, without  inquiry,  in  the  absence  of  actual  notice  of 
dissolution,  it  is  not  necessary  in  every  case  that  his  prior 
dealings  should  liave  been  numerous  or  continued  over  a  long 
space  of  time.  Tliis  principle  may  be  illustrated  by  the 
case  of  Lyon  v.  Jolmson.^  There  the  defendants  had  been 
doing  business  in  partnership,  and,  while  so  engaged  in  busi- 
ness, made  a  single  purchase  of  coal  of  the  plaintiffs.  The 
.partnership  between  the  defendants  was  dissolved  in  the 
spring,  and  such  dissolution  was  duly  published  in  a  news- 
paper in  the  place  where  the  business  of  both  plaintiffs  and 
defendants  was  conducted.  At  the  time  of  the  subsequent 
purchase,  however,  the  plaintiffs  had  no  knowledge  of  such 
dissolution.  It  further  appeared  that,  prior  to  the  former 
transaction,  defendants  had  been  regular  customers,  in  their 
firm  name,  in  purchasing  coal  of  the  firm  of  which  plaint- 
iffs were  the  successors,  carrying  on  the  same  business  in  the 
same  place,  and  that  one  of  the  plaintiffs  was  a  member  of 
such  firm,  and  the  other  had  been  employed  by  them  as  a 
clerk.  These  facts  were  held  sufficient  to  entitle  plaintiffs 
to  recover  of  the  partnership  as  constituted  jjrior  to  the  dis- 

1  Mechanics'  Bank  v.  Livingston,  33  Barb.,  458. 

2  Vernon  v.  Manhattan  Co.,  17  AVend.,  524;  S.  C,  83  Wend.,  183. 

3  28  Conn.,  1. 


296  KOTICE    BY    WIIICU    LIABILITIES    EXTINGUISHED. 

solution,  not  withstanding  the  publication  of  such  notice  of 
dissolution.  AYhether,  in  all  cases  of  a  single  transaction, 
the  creditor  would  occupy  the  same  position,  the  case  cited 
does  not  determine.  This  would  depend,  no  doubt,  to  a 
great  extent,  upon  the  magnitude  of  the  purchase,  or  the 
importance  of  the  dealing,  as  well  as  upon  other  attendant 
circumstances,  such  as  the  lapse  of  time  between  the  two 
transactions,  or  between  the  prior  dealing  and  the  dissolu- 
tion, or  between  the  dissolution  and  the  subsequent  dealing 
for  which  the  creditor  seeks  to  hold  the  partnership.  These 
at  least  would  be  facts  proper  for  submission  to  the  jury,  to 
enable  them  to  determine  whether  the  prior  dealings  be- 
tween the  parties  were  such  as  to  warrant  the  creditor  in 
beheving  in  the  continued  existence  of  the  partnership  as 
constituted  at  the  time  of  the  prior  dealings.^  But  where 
the  prior  dealing  is  trifling  in  amount  and  attended  with 
such  circumstances  as  would  indicate  that  it  was  made  with- 
out any  reference  to  the  parties  with  whom  it  was  had,  as  a 
casual  sale  for  cash,  credit  being  neither  asked  nor  given,  it 
is  plain  that  the  reason  of  the  rule  requiring  actual  knowl- 
edge or  notice  of  the  dissolution  to  those  having  former 
dealings  with  the  firm  would  not  apply.^ 

§518.  Notice  to  New  Customers. —  We  have  already 
stated  that,  where  the  person  with  whom  the  transaction  is 
had  subsequent  to  the  retirement  or  dissolution,  knew  of  the 
former  partnership,  he  would  be  entitled  to  notice,  provided 
his  subsequent  dealing  with  the  firm  was  in  rehance  upon 
the  responsibihty  of  the  retiring  partner,  and,  if  not  notified, 
would  have  a  right  to  pursue  his  remedy  against  the  retiring 
partner,  although  he  had  never  had  any  dealings  with  the 
firm  prior  to  its  dissolution  or  the  retirement  of  such  part- 
iner.^  But  it  is  not  essential  that  this  notice  should  be  actu- 
'ally  communicated  to  him.  The  law  is  very  jealous  of  the 
rights  of  those  having  dealings  with  partnerships,  and  holds 

1  Lyon  V.  Johnson,  28  Conn.,  1. 

2Pai-s.  on  Part.,  415;  Clapp  v.  Rogers,  13  N.  Y.,  283. 

3<Swpm,  §483. 


DISSOLUTION   OF   PAKTNEKSHIP.  297 

the  individual  members  of  any  firm  to  a  strict  accountability 
for  its  obligations ;  but  it  would  be  going  to  unwarranted 
length  to  require  one  Avho  wished  to  dissolve  his  connection 
with  his  business  associates  to  actually  notify  every  one 
who  knew  of  the  existence  of  the  partnership,  and  might 
by  any  possibility  have  dealings  with  the  firm  in  the  future, 
at  the  peril  of  being  held  liable  for  such  future  transactions. 
It  is  therefore  universally  held  that  those  who  have  not  had 
prior  dealings  with  the  partnership  may  be  sufficiently  noti- 
fied to  prevent  the  accruance  of  any  liability  in  his  favor 
against  the  retiring  partner  by  pubhshing  the  notice  of  the 
dissolution  in  a  public  newspaper.^ 

§  51 4.  Time  of  Publication.—  There  seems  to  be  no  fixed 
rule  as  to  the  time  for  which  such  publication  shall  be  made, 
nor  of  the  form  of  expression  to  be  used,  in  order  to  exon- 
erate the  retiring  member  of  the  partnership  from  obhga- 
tions  subsequently  incurred  in  the  name  of  the  firm. 

§515.  PuMicatioii  in  Newspaper. —  Where  the  party 
having  subsequent  dealings  with  those  pretending  to  repre- 
sent the  partnership  which  has  been  dissolved  has  known  of 
the  partnersliip  during  its  existence,  the  rule  generally  laid 
down  by  the  courts  in  this  country  and  in  England  is  that 
the  retired  partner  may  be  held  hable  for  obligations  in- 
curred in  the  name  of  the  firm  after  his  retirement,  unless 
public  notice  has  been  given  of  the  dissolution  by  publishing 
the  fact  in  a  newspaper.-  And  it  has  been  even  held  under 
this  rule  that  the  mere  notoriety  of  the  fact  of  dissolution 
would  not  supply  the  place  of  such  publication,  in  the  ab- 
sence of  actual  notice.' 

§516.  Wliere  Published. —  Where  this  rule  is  adhered 
to  strictly,  the  notice  is  in  general  required  to  appear  in  a 

iMowatt  V.  Howland,  3  Day,  353;  Lansing  v.  Gaine,  3  Johns.,  300; 
Graves  v.  Merry,  6  Cow.,  701;  Ketcham  v.  Clark,  G  Johns.,  144;  New- 
some  V.  Coles,  2  Camp.,  617;  Godfrey  v.  Turnbull,  1  Esp.,  371. 

2 Southern  v.  Grim,  67  HI.,  106;  Dickinson  v.  Dickinson,  25  Gratt.,  321 ; 
Amidown  v.  Osgood.  24  Vt.,  278;  Prentiss  v.  Sinclau-,  5  Vt.,  149;  South- 
wick  V.  McGovern,  28  la.,  533. 

3 Pitchers.  BaiTows,  17 Pick.,  361;  Holdaner.  Butterworth,  5Bosw.,  1. 


298  NOTICE   BY   WniOH   LIABILITIES   EXTTNGUISHED. 

paper  published  in  the  place  where  the  business  of  the  part- 
nership is  carried  on;  but  so  far  from  this  being  an  inflex- 
ible rule,  the  publication  being  made  at  the  place  of  business 
will  not  always  be  conclusive  upon  subsequent  creditors 
who  reside  elsewhere.  As,  where  the  factory  of  the  firm 
was  located  at  Baton  Rouge,  which  was  technically  the 
place  of  business ;  but  the  partners  resided  in  the  city  of 
'New  Orleans,  where  they  were  in  the  habit  of  raising  funds 
for  the  prosecution  of  their  business,  it  was  held  that  the 
publication  of  a  notice  of  dissolution  in  the  newspapers 
of  Baton  Eouge  was  not  sufficient  to  affect  creditors  resid- 
ing in  Is^ew  Orleans,  who,  with  antecedent  knowledge  of 
the  partnership,  but  no  knowledge  of  its  being  dissolved, 
subsequently  gave  credit  to  the  firm.^ 

§  517.  Selection  of  Newspaper. —  By  a  custom  of  Lon- 
don the  notice  is  published  in  the  "  London  Gazette."  ^  But 
nowhere  in  this  country  is  it  imperatively  required  that 
such  notice  shall  be  published  in  any  particular  paper.  As 
the  newspapers  are  numerous,  the  retiring  partner  has  quite 
an  extensive  option  in  selecting  the  medium  of  communica- 
tion. By  publishing  the  notice  in  an  obscure  journal  of 
very  limited  circulation,  the  fact  may  be  effectuall}^  con- 
cealed from  those  most  interested  in  knowing  the  status  of 
the  partnership.  For  this  reason  notification  merely  by 
such  pubhcation  does  not  always  serve  to  exonerate  the  re- 
tiring partner  from  liability  to  those  who  have  never  had 
prior  deaUngs  with  the  firm.  The  proof  of  sufficient  notice 
is  not  always  complete  with  the  proof  of  publication,  as  in 
cases  where  original  process  is  served  by  this  method. 

§  518.  Maimer  Open  to  Inquiry. —  The  manner  in  which 
the  publication  is  made  is  always  open  to  inquiry  respect- 
ing the  paper  selected  as  a  medium ;  the  number  of  times 
the  advertisement  is  published ;  and  even  the  extent  of  its 
display  and  the  place  it  occupies  in  the  paper.  The  ques- 
tion being  one  of  diligence  and  good  faith  on  the  part  of 

1  Grinnan  v.  Baton  Rouge  Mills  Co.,  7  La.  An.,  638. 
.  2  Parkin  v.  Can-utliers,  3  Esp.,  248. 


DISSOLUTION    OF   PAETNEESHIP.  299 

the  retiring  partner,  be  will  not  be  allo^ved  to  avail  bimself 
of  sucb  published  notice  unless  it  appears  to  have  been  as 
reasonable  and  sufficient  as  mercantile  usage  requires  or  the 
public  have  a  right  to  expect.^ 

§  5 1 9.  English  and  American  Doctrine. —  The  rule  re- 
quiring the  publication  of  notice  as  an  absolute  condition  to 
the  exemption  of  the  retiring  partner  from  future  obhga- 
tions  of  the  firm,  entered  into  with  those  who  have  had  no 
prior  deahngs  with  the  partnership,  prevails  in  England 
with  considerable  uniformity,  but  in  this  country  it  has  been 
emphatically  denied  by  the  highest  legal  authority  known 
to  our  jurisprudence.^  In  this  case,  which  was  recently  de- 
cided by  the  supreme  court  of  the  United  States,  the  ques- 
tion was  elaborately  discussed,  and  the  British  and  iVmerican 
authorities  carefully  and  ably  reviewed.  The  record  dis- 
closed that  the  business  of  the  partnership,  which  was  that 
of  lumber  dealers,  had  been  conducted  at  the  city  of  Daven- 
port in  the  state  of  Iowa.  Upon  the  dissolution  actual  no- 
tice was  given  to  those  having  former  deahngs  with  the 
firm,  and  there  was  such  an  open  and  notorious  change  of 
business  as  would  have  apprised  all  those  engaged  in  the 
same  line  of  business  in  that  community,  that  one  of  the 
partners  had  withdrawn.  The  action  was  brought  on  cer- 
taui  drafts,  drawn  and  accepted  by  the  remaining  partner 
after  dissolution.  The  holders  of  the  drafts  had  never  had 
any  dealings  with  the  firm,  but  had  heard  that  there  was 
such  a  firm  doing  business  as  lumber  dealers  at  Davenport. 
At  the  trial  there  was  no  evidence  of  pubhcation  of  notice 
in  the  newspapers  of  Davenport  or  at  the  place  where  tlie 
drafts  were  drawn,  which  was  about  five  hundred  miles  dis- 
tant, on  the  Mississippi  river.  Evidence  was  offered  and  re- 
jected by  the  trial  court  for  the  purpose  of  proving :  1.  That 
at  the  tune  of  dissolution  it  was  generally  known  among 
business  men  at  Davenport  that  the  partnership  was  dis- 
solved.    2.  That  it  was  generally  known  along  the  Missis- 

iWardwell  v.  Haight,  2  Barb.,  549;  Pars,  on  Pait.,  418. 
2  Lovejoy  v.  Spafford,  4  Cent.  L.  J.,  80 ;  93  U.  S.,  430, 


300  NOTICE   BY   WHICH    LIABILITIES   EXTINGUISHED. 

sippi  river  that  this  dissolution  had  taken  place.  3.  That  at 
the  time  of  dissolution  the  facts  were  communicated  to  oth- 
ers than  the  plaintiffs,  and  to  whom,  and  in  what  manner, 
they  were  so  communicated.  4.  That  at  the  time  the  part- 
nership w^as  dissolved  it  was  a  matter  of  general  repute  and 
knowledge  in  their  place  of  business.  5.  That  prior  to  the 
date  of  the  drafts,  notice  was  given  to  all  or  nearly  all  the 
lumber  dealers  where  the  holders  of  such  drafts  resided  at 
the  time,  and  near  which  the  drafts  were  drawn  and  ac- 
cepted. This  evidence  was  avowedly  offered,  not  for  the 
purpose  of  bringing  home  actual  knowledge  to  the  plaintiff, 
but  merely  to  show  circumstances  which,  from  their  notori- 
ety, would  amount  to  such  implied  notice  as  would  suffice 
to  bind  strangers.  The  substantial  ground  upon  which  the 
evidence  was  rejected  was  that  nothing  short  of  publication 
in  the  newspapers  of  the  place  of  business  of  the  partnership 
would  be  sufficient.  In  reversing  the  judgment  for  error  in 
rejecting  the  evidence  offered  on  behalf  of  the  defendant, 
the  court  held  that  it  was  not  an  absolute  inflexible  rule  that 
there  must  be  a  publication  in  a  newspaper  to  protect  a  re- 
tiring partner.  In  delivering  the  opinion  of  the  court  Mr. 
Justice  Hunt  uses  the  following  language :  "  The  question 
is  not  exclusively  whether  the  holders  of  the  paper  did  in 
fact  receive  information  of  the  dissolution.  If  they  did, 
they  certainly  cannot  recover  against  a  retired  partner. 
But  if  they  had  no  actual  notice,  the  question  is  still  one  of 
duty  and  diligence  on  the  part  of  the  withdrawing  partner. 
If  he  did  aU  that  the  law  requires,  he  is  exempt,  although 
the  notice  did  not  reach  the  holders."  ^ 

§  520.  Liability  of  Retiring.  Partner  Affected  hj  Sub- 
sequent Conduct. —  The  conduct  of  the  withdrawing  part- 
ner may  be  such  as  not  to  entitle  him  to  any  benefit  from  a 

1  Lovejoy  v.  Spafford,  4  Cent.  L,  J.,  82.  See,  also,  the  oiiinion  of  Judge 
Edmunds  in  Wai-dwell  v.  Haiglit,  2  Barb.,  553;  Bristol  v.  Sprague,  8 
Wend.,  423;  Ketcham  v.  Clark,  6  Johns.,  144;  Pratt  v.  Page,  32  Vt.,  13; 
Watkinson  v.  Bank  of  Penn.,  4  Whart.,  482;  White  v.  Mui-phy,  3  Rich. 
L.,  369, 


DISSOLUTION    OF    PAKTNEKSHIP,  301 

published  notice,  even  as  against  subsequent  creditors  of  the 
firm  who  have  had  no  prior  deaUngs.  As  where  the  firm 
was  composed  of  father  and  son,  and  the  father  withdrew, 
leaving  the  business  in  the  hands  of  his  partner  and  another 
son,  with  authority  to  continue  the  business  in  the  old  name, 
the  father  was  held  liable  to  a  subsequent  dealer  who  gave 
credit  on  the  reputation  of  the  partnership  previous  to  the 
change,  notwithstanding  the  fact  that  notice  of  the  disso- 
lution was  duly  pubhshed.^  The  ground  of  this  decision 
w^as  that,  by  permitting  the  continued  use  of  his  name,  the 
father  was  estopped  from  denying  his  liability,  as  against 
one  without  actual  notice  of  his  withdrawal,  who  trusted 
the  partnership  on  the  strength  of  his  apparent  connection 
with  the  business. 

§  5^1.  Estoppel. —  In  the  case  of  Newcomet  v.  Brotz- 
man,2  the  operation  of  the  doctrine  of  estoppel  was  placed 
upon  apparently  broader  ground.  There  the  father  was  a 
member  of  a  partnership  which  was  dissolved  by  his  pur- 
chase of  the  interest  of  his  partner,  and  giving  the  entire 
business  to  the  son,  who  had  previously  represented  his 
father  in  the  management,  drawing  his  portion  of  the 
profits.  After  the  firm  was  dissolved,  the  other  partner 
remained  in  the  store  in  the  capacity  of  a  clerk.  There  was 
no  alteration  made  in  the  sign,  and  the  new  proprietor 
continued  the  business  as  before.  Under  this  state  of  facts 
the  court  held  that  one  subsequently  giving  credit  to  the 
original  firm  would  be  entitled  to  pursue  his  remedy  against 
the  former  partners,  regardless  of  whether  notice  of  disso- 
lution had  been  given  or  not. 

§  522.  Example  of  New  Customer  Entitled  to  Actual 
Notice. —  Another  case  surrounded  by  peculiar  circum- 
stances is  that  of  Amidown  v.  Osgood.^  Here  there  were 
no  actual  dealings  prior  to  the  dissolution,  but  at  the  time 
of  one  transaction  there  had  been  neither  actual  nor  im- 

1  Speer  v.  Bishop,  24  Ohio  St.,  598. 

2  69  Pa.  St.,  185. 

3  24  Vt.,  278, 


302  NOTICE   BY    WHICH    LIABILITIES   EXTINGUISHED. 

plied  notice  given  to  the  creditor.  The  goods  sold  were 
partially  delivered,  prior  to  the  publication  of  the  notice  of 
dissolution,  and  while  the  original  signs  and  all  the  exter- 
nal indicia  of  the  continuance  of  the  partnership  remained. 
The  subsequent  transaction  from  which  the  obligation  arose 
was  based  on  the  faith  of  the  partnership  credit,  and  it  was 
held  that,  altliough  the  first  dealing  with  the  creditor  was 
after  dissolution,  he  was  nevertheless  entitled  to  the  same 
notice  as  though  the  entire  transaction  had  been  completed 
during  the  actual  continuance  of  the  partnership. 

§  523.  Knowledge  of  Expiration  of  Partnership. —  A 
creditor  who  has  knowledge  at,  or  prior  to,  the  time  when 
the  credit  is  given,  that  the  partnership  with  which  he  deals 
will  expire  by  limitation  at  a  time  certain,  is  bound  by 
such  knowledge  to  the  same  extent  as  though  he  had  actual 
notice  thereof  when  it  occurred.  Thus  where  one  who  knew 
that  a  partnership  was  formed  to  continue  for  a  certain 
period  of  time,  and  daring  such  continuance  the  firm  em- 
ployed an  attorne}^  or  agent  to  make  pm^hases  for  them, 
such  person,  selling  to  such  attorney  goods  which  were 
ostensibly  purchased  for  the  partnership,  could  not  recover 
from  the  firm  for  anything  sold  after  the  expiration  of  the 
time  to  which  the  partnership  was  limited.^ 

§  524.  Notice  of  Limited  Partnership. —  The  notice  by 
which  partners  may  exonerate  themselves  from  future  liabil- 
ity is  not  confined,  however,  to  notice  of  changes  in  the  con- 
stituency of  the  firm.  There  is  an  obhgation  upon  each  of  the 
partners,  imphed  by  law,  to  answer  for  the  contracts  of  each 
of  his  copartners,  made  and  entered  into  on  behalf  of  the 
firm.  "With  respect  to  the  business  of  the  partnership  the 
law  imphes  a  reciprocal  agency,  by  which  each  may  bind  all 
the  others.  But  the  liabilities  arising  from  this  relation  may 
be  restricted  by  agreement  between  the  parties,  by  forming 
what  is  known  as  limited  partnerships,  for  the  reason  that 
the  liability  of  one  or  more  of  the  partners  is  hmited  to  a 

1  Schlater  v.  Winpenny,  75  Pa.  St.,  331. 


DISSOLUTION    OF   PARTXEKSIIIP.  303 

certain  amount,  or  by  restricting  tlie  power  of  one  or  more 
of  the  members  to  bind  the  others  by  contracts,  or  to  incur 
obhgations  of  any  sort  in  the  name  of  the  firm.  Such  hm- 
itations  or  restrictions  can  only  affect  persons  cleahng  with 
the  firm,  with  notice  thereof.^  But  those  having  notice 
would  occupy  no  better  position  with  reference  to  dealings 
bej'ond  the  scope  of  the  liability  assumed  by,  or  the  restric- 
tions imposed  upon,  certain  members  of  the  firm,  than 
though  they  dealt  with  any  other  agent  who  exceeded  his 
limited  authority.'^  Accordingly,  where  one  of  the  members 
of  a  partnership  executed  a  note  on  behalf  of  the  firm  for 
money  borrowed  ostensibly  for  the  firm's  use,  the  larger 
portion  of  which  was  so  applied,  and  the  part}"  who  took  the 
note  had  received  notice  from  a  copartner  of  the  maker  that 
such  maker  had  no  authority  to  draw  on  the  firm  account, 
it  was  held  by  Lord  Ellexboegugh  that  the  holder  of  the 
note  could  not  recover  from  the  partner  giving  the  notice.* 

§  535.  Special  Partnership. —  So,  where  there  was  a 
stipulation  between  A.,  B.  and  C,  who  appeared  to  the 
world  as  copartners  in  business,  that  C.  should  neither  par- 
ticipate in  the  profits  nor  share  the  losses,  and  should  not 
be  liable  as  a  partner,  it  was  held  that  C.  was  not  liable  as 
such  to  those  who  had  notice  of  this  stipulation.* 

§526.  Restrictions  ami  Limitations.— There  is  neces- 
sarily a  difference  between  the  manner  of  giving  notice  of 
the  dissolution  of  a  partnership,  and  giving  notice  of  re- 
strictions upon  the  powers,  or  limitations  upon  the  liabili- 
ties, of  partners,  or  those  who  hold  themselves  out  to  the 
world  as  such.     ]S^otice  of  dissolution,  as  we  have  seen,  may 

iPars.  on  Part.,  98. 

2  Id.,  99,  and  cases  cited. 

^Gallway  v.  Matthew,  10  East,  264.  See,  also.  Brown  u,  Leonard,  2 
Chit.,  120;  Le  Roy  v.  Johnson,  2  Pet.,  186;  Gow  on  Part.,  48,  49. 

*Aldersout'.  Pope,  1  Camp.,  404,  note;  Batty  v.  McCundie,  3  Car.  & 
P.,  202;  Denny  r.  Cabot,  6  Met.,  82;  Bailey  v.  Qark,  6  Pick.,  372;  Board- 
man  V.  Gore,  15  Mass.,  331;  Baxter  v.  Clark,  4  Ired.,  127;  Dow  r.  Say- 
ward,  12  N.  H.,  271;  Langan  v.  Hewett,  13  Sm.  &  M.,  122;  Leavitt  v. 
Peck,  3  Conn.,  124;  Monroe  v.  Conner,  15  Me.,  178. 


304:  NOTICE   BY   WHICH   LIABILITIES   EXTINGUISHED. 

in  certain  cases  be  implied  from  circumstances,^  or  may  be 
purely  constructive  in  its  character;-  but  with  respect  to  a 
notice  which  contradicts  all  the  appearances  by  which  men 
are  usually  guided  in  their  dealings  with  each  other,  sound 
policy  would  dictate  that  it  should  be  actual,  in  the  strict 
sense  of  the  term,  and  the  proof  of  it  should  be  of  the 
most  satisfactory  character.*  If  there  were  any  diiference 
between  old  and  new  customers  it  would  seem  that  the  lat- 
ter should  have  the  preference  regarding  the  degree  of 
knowledge  to  be  brought  home  to  them  of  the  stipulations 
between  the  copartners,  hmiting  their  common  law  liabili- 
ties, or  restricting  their  powers. 

§  527.  Assumption  of  Excess  of  Autliority  by  One 
Partner. —  Where  the  contract  is  entered  into  or  the  obli- 
gation incurred  by  the  partner,  who,  at  the  time,  is  acting 
beyond  the  scope  of  his  authorit}?",  as  conferred  by  the  arti- 
cles of  copartnership,  or  restricted  by  private  stipulation, 
such  acts  will  not  bind  his  copartners  in  favor  of  one  hav- 
ing notice  of  the  misconduct  of  the  partner  with  whom  he 
treats,  when  such  act  amounts  to  a  fraud  upon  the  partner- 
ship.* 

§  528.  Misapplication  of  Funds. —  When  the  excess  of 
authority  by  one  partner  is  in  the  misapplication  of  the 
funds  of  the  partnership  to  satisf}^  a  debt  or  demand  against 
himself,  or  for  his  own  benefit,  the  party  with  whom  the 
transaction  takes  place,  knowing  that  the  funds  are  those 
of  the  firm,  cannot  avoid  knowledge  of  their  misapplica- 
tion,, and  the  obligations  assumed  will  be  void  as  against 
the  partnership,  how  binding  soever  they  may  be  upon  the 
partner  who  commits  the  fraud.' 

1  Supra,  §  485, 

^  Supra,  §513. 

3 Pars,  on  Part.,  98. 

*  Connecticut  River  Bank  v.  French,  6  Allen,  313 ;  Warren  v.  French, 
6  Allen,  317 ;  Sandilands  v.  Marsh,  2  B.  &  Aid.,  673. 

sKemeysu.  Richards,  11  Barb.,  312;  BurweU  v.  Springfield,  15  Ala., 
273;  Green  v.  Deakin,  2  Stark.,  347;  Story  on  Part.,  §  133. 


DISSOLUTION    OF    PAKTNERSIIIP.  305 

§  529.  Effect  of  Dissolution  Upon  Guarantor.— The 

effects  of  notice  of  dissolution  of  a  partnership  are  not 
always  confined  to  the  parties  having  dealings,  prior  or 
subsequent,  with  the  firm.  Where  advances  are  made  to  a 
copartnership,  not  upon  faith  in  the  firm's  credit,  but  upon 
the  strength  of  the  guaranty  of  a  third  party,  the  guaran- 
tor cannot  be  held  for  advances  made  by  the  creditor,  sub- 
sequent to  his  receiving  notice  that  the  partnership  is 
dissolved.^ 

§530.  Onus  Probandi. —  When  one  attempts  to  escape 
the  responsibility  implied  from  his  connection  with  the 
partnership  in  whose  name  the  obligation  is  incurred,  upon 
the  ground  that  he  has  severed  such  connection,  and  notified 
the  creditor,  or  that  he  had  given  antecedent  notice  of  his 
non-liability,  the  authorities  all  seem  to  agree  in  casting  the 
burthen  of  proof  upon  him  in  every  instance.^  If  the  cir- 
cumstances require  actual  notice,  it  is  necessary  for  him  to 
allege  and  prove  such  actual  notice.  If  the  case  admits  of 
constructive  notice,  by  publication  in  a  newspaper,  or  by 
other  notorious  proclamation  of  the  fact  relied  upon,  he  still 
has  the  affirmative  of  the  issue  upon  the  matter  of  notice, 
and  until  he  makes  at  least  a  prima  facie  showing  wiU  be 
held  liable  as  a  partner. 

1  Cremer  v.  Higginson,  1  Mason,  323. 
2Carmichael  v.  Greer,  55  Ga.,  116. 
20 


o06  NOTICE   BY   WHICH   LIABILITIES   EXTINGUISHED. 


II.  Notice  by  Caeriees  Limiting  Theik  Liability. 

§  531.  Division  of  Subject. 

532.  Inception  of  Liability. 

533.  Cannot  be  Varied  by  Published  Notice. 

534.  Liability  at  Common  Law. 

535.  Different  Methods  of  Giving  Notice. 

536.  State  of  the  Law  in  England. 

537.  Notice  Must  be  Brought  Home. 

538.  Posting  Notices  Insufficient. 

539.  Same. 

540.  Example  of  Insufficient  Notice. 

541.  American  Rule —  Must  be  Clear  and  Explicit. 
543.  Limitation  of  Extent  of  Liability. 

543.  Notice  on  Back  of  Raih-oad  Ticket. 

544.  Must  be  Seen  and  Understood. 

545.  Party  Unable  to  Read  Notice. 

546.  Taking  Paper  Containing  Advertisement,  Insufficient. 

547.  To  Whom  Given  —  Servant. 

548.  Printed  in  Bill  of  Lading,  Insufficient. 

549.  Conflicting  Notices. 

550.  Same. 

551.  Agent's  Acts  Governed  by  Notice  to  Principal. 

552.  General  Docti'ine  in  America  —  Cannot  be  Limited  by  Notice. 

553.  May  be  by  Contract. 

554.  Notice  and  Assent. 

555.  Assent  Must  be  Voluntary. 

556.  Same. 

557.  Views  of  Judge  Redfield. 

558.  Notice  Never  Exempts  from  Negligence. 

559.  Example  of  Express  Contract  Held  Inoperative. 

560.  Cases  Arising  Under  English  Statute. 

561.  Further  Illustration  of  Same. 
.  562.  Notice  of  Arrival. 

563.  Will  Terminate  Liability  as  Carrier. 

564.  Reasonable  Time  for  Removal  After  Knowledge  of  Arrival. 

565.  Classification  of  Conflicting  Authorities. 

566.  Massachusetts,  Illinois,  Iowa. 

567.  Modification  of  the  Rule  in  ^Massachusetts. 

568.  New  Jersey,  Vermont  —  Reasonable  Time  to  Remove. 

569.  Additional  Authorities. 

570.  New  York,  Michigan,  Texas,  New  Hampshire  and  other  States- 

Notice  Required. 

571.  Carriers  by  Water  —  Notice  Required. 


LIMITING    LIABILITY    OF    CARKIEES.  307 

§  572.  Comparison  of  Conflicting  Views. 

573.  Rule  Requiring  Notice,  Preferred. 

574.  Conflict  Explained  by  Difference  in  Local  Customs. 

575.  Rule  Affected  by  Custom. 

576.  Waiver  and  Excuse. 

577.  Reasonable  Time  for  Removal. 

577a.  Actual  Notice  —  Opportunity  to  Remove  Goods. 

§531.  DiTision  of  Subject. —  The  carriers'  notices  by 
which  their  liability  is  sought  to  be  limited  have  reference — 
1.  To  the  notice  by  which  they  endeavor  to  qualify  or  re- 
strict their  responsibility,  imposed  by  law,  as  special  insurers 
of  the  articles  committed  to  their  charge.  2.  The  notice  by 
whicli  their  responsibility  as  carriers  is  terminated. 

§  532.  Inception  of  Liability. —  An  important  matter  for 
consideration  in  connection  with  notices  of  the  former  class 
is  the  inception  of  the  carrier's  liability.  This  usually  takes 
place  when  the  goods  are  deUvered  to  the  carrier  for  trans- 
portation, whether  immediately  taken  upon  the  vessel  or 
vehicle  employed  in  their  carriage,  taken  into  a  warehouse 
to  await  the  carrier's  convenience,  or  left  upon  a  public 
dock  or  wharf,  where  it  is  usual  and  customary  to  deposit 
articles  intended  for  transportation  by  the  carrier  in  whose 
charge  they  are  thus  delivered.^  But  in  order  to  hold  the 
carrier  to  the  onerous  responsibility  imposed  upon  him  by 
common  law,  something  more  than  the  delivery  of  the  goods 
to  such  carrier  must  appear.  It  is  not  enough  that  he  is 
charged  with  their  possession.  They  must  be  delivered  to 
him  in  his  capacity  of  carrier  and  none  other.  The  articles 
delivered  for  carriage  must  be  delivered  for  present  trans- 
portation, and  not  to  be  held  for  a  time,  and  shipped  when 
further  orders  of  the  bailor  are  given  to  that  effect.^  If 
they  are  delivered  for  present  storage  and  future  shipment, 
although  in  the  possession  or  under  the  control  of  the  car- 

iMerriam  v.  H.  &  N.  H.  R'y,  20  Conn.,  354;  Rogers  v.  West,  9  Ind., 
400 ;  Burrell  v.  North,  2  Carr.  &  Kir.,  680;  Boehm  v.  Combe,  2  M.  &  S., 
172. 

2  Moses  V.  Boston  &  M.  R.  R.  Co.,  24  N.  H.,  71;  Spade  v.  Hud.  Riv. 
R'y,  16  Barb.,  383;  R.  R.  Co.  v.  Manuf.  Co.,  16  Wall.,  318. 


303  NOTICE   BY   WHICH    LIABILITIES   EXTINGUISHED. 

rier,  they  are  not  held  by  him  as  such,  but  only  as  a  ware- 
houseman, who  is  held  to  less  strict  accountability.* 
§  533.  Cannot  be  Taried  by  Published  Notice. —  This 

rule  as  to  the  commencement  of  the  earner's  liability  is  so 
weU  recognized  that  it  cannot  be  abrogated  by  public 
notice.  Thus,  wliere  a  railroad  corporation,  having  a  ware- 
house for  the  storage  of  goods  intrusted  to  it  for  present 
shipment,  advertised  that  it  would  not  be  responsible  for 
goods  so  left,  except  for  injuries  resulting  from  the  negli- 
gence of  its  own  servants,  it  was  held  that  it  was  neverthe- 
less liable  for  the  value  of  goods  left  at  its  warehouse  to  be 
presently  forwarded,  which,  while  in  store,  were  destroyed 
by  an  accidental  fire.^ 

§534.  Liability  at  Common  Law, —  The  liability  of 
common  carriers,  as  jBxed  by  the  law  of  this  country  and 
England,  is  probably  so  well  understood  as  to  render  unnec- 
essary further  comment  or  illustration  than  a  statement  of 
the  general  rule  by  which  such  hability  is  governed  in  re- 
spect to  the  goods  committed  to  the  carrier's  charge.  This 
rule  is  that  such  carriers  will  be  liable  for  all  damage  and 
loss  of  goods  during  the  carriage,  from  whatever  cause,  un- 
less from  the  act  of  God,  which  is  hmited  to  inevitable 
accident,  or  from  the  public  enemy. ^ 

§  535.  Different  Methods  of  Giving  Notice. —  The  notice 
by  w^hich  carriers  seek  to  limit  this  liability  is  in  some  in- 
stances actually  communicated  to  the  shipper,  and  in  others 
rests  entirely  upon  declarations  of  the  carrier's  rules,  made 
pubhc  by  printed  posters,  signs,  or  the  advertisement  of 
then'  non-liabiUty,  m  connection  with  the  customary  solici- 
tation of  public  patronage.  Another  method  adopted  alike 
by  railroad  corporations  and  other  carriers  by  land,  and  by 
carriers  by  water,  is  to  print  the  notice  of  the  exemption . 
claimed  upon  the  ticket  of  the  passenger,  or  the  receijDt,  way- 

1  O'Neill  V.  New  York  &  Hud.  Eiv.  R,  R.  Co.,  60  N.  Y.,  138;  Selway  v. 
Holloway,  1  Ld.  Raym.,  46. 

^ Moses  V.  Boston  &  M.  R.  R.  Co.,  24  N.  H.,  71. 
3  2  Redfield  on  Railways,  6,  and  cases  there  cited. 


LIMITING    LIABILITY   OF   CAERIEKS.  309 

bill,  or  bill  of  lading,  when  engaged  in  tbe  carriage  of  goods 
and  chattels. 

§  536.  State  of  the  Law  in  England.— The  state  of  the 
law  upon  this  question  in  England  prior  to  the  legislation 
by  which  the  responsibihty  of  carriers  has  been  settled  upon 
a  very  reasonable  basis  in  that  country  •  may  be  illustrated 
by  the  case  of  Maving  v.  Todd,'^  where  the  vendor  of  goods 
in  London  forwarded  them  to  the  vendee  in  the  country  by 
a  carrier  from  whom  he  had  received  notice  that  his  liabihty 
for  the  safety  of  goods  committed  to  his  care  for  transporta- 
tion was  limited  so  as  not  to  extend  to  a  loss  by  fire.  Dur- 
ing the  time  the  goods  were  in  the  possession  of  the  carrier 
they  were  accidentally  destroyed  by  fire,  and,  in  deciding  an 
action  brought  by  the  vendee  to  recover  for  their  loss,  it 
was  held  by  Lord  Ellenbokough  that,  although  the  carrier 
was  selected  by  the  vendor,  the  vendee  was  bound  by  the 
selection,  and,  notwithstanding  that  the  carrier  was  bound 
to  receive  the  goods,  he  might  make  his  own  terms  and 
exclude  his  liability  for  the  loss  of  the  goods  altogether.' 

§  537.  Notice  Must  be  Brought  Home. —  But  while  the 
rule  that  notice  was  sufficient  to  restrict  the  carrier's  com- 
mon law  liability  prevailed  in  England,  it  was  uniformly 
insisted  by  the  courts  that  such  notice  should  be  brought 
home  to  the  parties  to  be  affected,  or  their  agents.     Thus, 

1 11  Geo.  rV.  and  1  Wm.  IV.,  c.  68;  Railway  &  Canal  Traffic  Act,  17  & 
18  Vict.,  c.  31,  §7. 

21  Stark.,  73. 

3  This  leai-ned  jurist  is  reported  to  liave  expressed  regret  that  tlie  law 
presented  such  encouragement  to  neghgence.  In  a  case  decided  in  the 
following  year  (1816)  he  says,  in  the  course  of  his  summing  up  to  the 
jury:  "  If  tliis  action  had  been  brought  twenty  years  ago  the  defendant 
would  have  been  hable.  *  *  *  It  was  found  that  the  common  law 
imposed  upon  carriers  a  liability  of  ruinous  extent,  and,  in  consequence, 
qualifications  and  limitations  of  that  liabiUty  have  been  introduced  from 
time  to  time,  till,  as  in  the  present  case,  they  seem  to  have  excluded  all 
responsibility  whatsoever,  so  that,  under  the  terms  of  the  present  notice, 
if  a  servant  of  the  carriers  had,  in  the  most  wilful  and  wanton  manner, 
destroyed  the  f  m-niture  intrusted  to  them,  the  principals  would  not  have 
been  hable.    Leason  v.  Holt,  1  Stark.,  186. 


310  NOTICE   BY    WHICH    LIABILITIES   EXTINGUISHED. 

where  it  was  sougHt  to  prove  notice  by  publication  in  the 
"  Gazette  "  and  the  London  Times,  it  was  held  that,  though 
the  former  was  admissible,  it  would  be  weak  unless  sup- 
ported by  evidence  that  the  plaintiff  was  in  the  habit  of 
reading  the  paper,  and  the  latter  was  excluded  for  the  want 
of  prior  proof  that  the  paper  was  taken  in  by  him.^ 

§  538.  Posting  Notices  Insufflcient. —  So  where  printed 
notices  were  posted  in  the  most  conspicuous  places,  as  in  the 
office  where  the  goods  were  delivered,  it  was  held  insuffi- 
cient unless  it  actually  came  to  the  knowledge  of  the  party 
or  his  agent.  As  where  the  porter  sent  to  deliver  the 
plaintiff's  goods  to  the  carrier  saw  a  printed  notice  limiting 
the  carrier's  liability,  and  it  was  proven  that  such  porter 
could  read,  this  was  held  insufficient  in  the  absence  of  proof 
that  he  had  read  the  notice.^ 

§  539.  Same. —  So,  also,  where  the  goods  were  delivered 
to  a  carrier's  cart,  sent  around  to  receive  them,  for  the  de- 
fendant's wagon,  and  a  printed  notice  that  defendant  would 
not  be  liable  for  packages  bej^ond  the  value  of  £5,  unless 
insurance  was  paid,  was  posted  at  his  office,  and  cards  con- 
taining a  similar  announcement  had  been  circulated  about 
the  town;  and  an  advertisement  to  the  same  effect  had  been 
published  in  the  town  paper ;  but  there  was  no  such  notice 
on  the  cart,  nor  was  it  proved  that  plaintiff  had  read  the 
newspaper,  or  seen  the  printed  notices  posted  at  the  office 
or  circulated  through  the  town,  it  was  held  that  the  defend- 
ant had  not  given  sufficient  notice  to  discharge  himself  from 
his  common  law  liabiHty.^ 

§540.  Example  of  Insufficient  Notice. —  "Where  the 
carrier  fastened  upon  the  door  of  his  office,  where  parcels 
were  received  for  carriage,  a  handbill,  blazoning  in  the  most 
conspicuous  manner  the  advantages  of  his  conveyances,  and 
stating  in  small  characters  at  the  bottom  that  he  would 
not  be  Hable  for  packages  above  the  value  of  £5  unless 

iLeason  v.  Holt,  1  Stark.,  186;  Walker  v.  Jackson,  10  M.  &  "W.,  161. 

2  Kerr  v.  WiUan,  2  Stark.,  53;  Davis  v.  Willan,  id.,  279. 

3  Clayton  v.  Hunt,  3  Camp.,  27.  See,  also,  Munn  v.  Baker,  2  Stai-k.,  255. 


LIMITING   LIABILITY   OF   CAEKIEKS.  311 

entered  as  such,  and  paid  for  accordingly^,  this  Avas  held  not 
to  be  such  notice  as  would  bind  those  employing  him  as  a 
carrier  to  submit  to  the  terms  imposed.' 
§  541.  American  Kule  —  Must  be  Clear  and  Explicit.— 

"Where  this  rule  is  adopted  in  the  United  States  the  same 
strictness  with  reference  to  the  character  of  the  notice  is 
required.  Knowledge  or  information  must  in  aU  cases  be 
brought  home  to  the  party  or  his  agents,  and  must  be  clear 
and  explicit  as  to  the  class  of  risks  from  which  exemption 
is  claimed.^  The  onus  of  proving  any  qualification  of  the 
carrier's  common  law  responsibility  rests  upon  him,  and 
consequently  it  would  not  onl}^  be  essential  for  him  to  show 
that  he  has  endeavored  to  inform  the  party  by  whom  he  is 
employed  that  he  will  not  be  liable  for  the  loss  or  damage 
from  which  he  seeks  to  exonerate  himself,  but  he  must  also 
prove  to  the  satisfaction  of  the  jury  that  such  information 
has  been  communicated  to  the  party  to  be  affected  thereby.^ 
§  542.  Limitation  of  Extent  of  Liability. —  Notices  are 
often  given  by  carriers  for  the  purpose  of  limiting  the  ex- 
tent of  their  liability  by  requiring  notice  from  the  shipper 
of  tlie  value  of  packages  committed  to  their  charge,  with  a 
view  to  fixing  the  cost  of  carriage.  The  doctrine  that  no- 
tice of  such  a  regulation,  when  brought  home  to  the  ship- 
per, will  be  binding  upon  him,  seems  to  be  more  generally 
accepted  in  this  country  than  where  the  notice  amounts  to 
an  avowal  of  non-liability  for  the  ordinary  risks  of  trans- 
portation, without  reference  to  the  question  of  concealment 
of  value.  A  regulation  to  the  effect  that  the  carrier  wiU 
not  be  responsible  for  packages  or  articles  of  a  certain  de- 
scription beyond  a  given  value,  unless  such  value  be  dis- 
closed and  the  carriage  paid  for  according  to  the  rates  for 

1  Butler  V.  Heane,  2  Camp.,  415.  See,  also.  Walker  v.  Jackson,  10  M. 
«S:  W.,  161;  Gouger  v.  Jolly,  1  Holt,  317. 

2Beckinan  v.  Shouse,  5  Rawle,  179. 

3  See  Verner  v.  Switzer,  32  Pa.  St.,  208;  Laing  v.  Coldar,' 8  Pa. 
St.,  479;  Bingham  v.  Rogers,  6  W.  &  S.,  495;  Atwood  v.  The  Reliance 
Co.,  9  Watts,  87;  Edwards  v.  Cahawba,  14  La.  An.,  224. 


312  KOTICE    BY    WiriOII    LIABILITIES    EXTINGUISHED. 

sucli  packages  or  articles,  is  supported  upon  the  plainest 
principles  of  justice  when  applied  to  such  commodities  as 
might  far  exceed  their  apparent  value/  Thus,  where  dogs, 
horses  or  other  animals,  or  articles  of  personal  adornment, 
are  committed  to  the  care  of  a  carrier  for  transportation, 
it  seems  quite  reasonable  tliat  such  carrier  should  have  a 
right  to  require  a  disclosure  of  theh  value  where  it  exceeds 
the  ordinary  rate  at  which  similar  animals  are  held  in  the 
market,  and  to  demand  additional  compensation  for  their 
carriage.^ 

§  543.  Notice  on  Back  of  Railroad  Ticket. —  But  notice 
of  such  a  regulation,  in  order  to  be  of  binding  force  upon  a 
shipper,  must  be  actually  communicated  to  him  or  his  agents 
in  connection  with  the  matter.^  It  was  accordingly  held  in 
Brown  v.  Eastern  Railroad  Co.,^  that  a  notice  printed  on 
the  back  of  a  railroad  ticket,  and  detached  from  the  part 
which  ordinarily  contains  aU  that  is  material  for  the  pas- 
senger to  know,  to  the  effect  that  the  company  would  not 
be  liable  for  the  baggage  of  pa.ssengers  beyond  a  certain 
amount,  unless  the  value  was  disclosed,  would  not  be  bind- 
ing upon  a  passenger  where  such  notice  was  not  seen  and 
read  by  him  when  the  ticket  was  purchased ;  and  that  such 
printed  notice  would  not  raise  a  legal  presumption  that  the 
ticket  was  purchased  with  a  knowledge  of  the  conditions, 
but  the  question  of  .knowledge  and  assent  on  the  part  of 
the  passenger  would  be  for  the  jury, 

§  544.  Must  Ibe  Seen  and  Understood. —  The  doctrine  in 
Brooke  v.  Pickwick  ■'  is  applicable  to  all  such  notices.     It  is 

1  RUey  V.  Home,  5  Bing.,  217 ;  Wyld  v.  Pickford,  8  M.  &  W.,  443 ;  Clay 
V.  Willan,  1  H.  Blackst.,  298;  Izett  v.  Mountain,  4  East,  371. 

2Harrison  v.  London,  Brighton  &  So.  Coast  R>  Co.,  2  B.  &  S.,  122; 
Tylyy.  Morrice,  Carthew,  485;  Cole  v.  Goodwin,  19  Wend.,  251;  Clay 
V.  Willan,  1  H,  Blackst.,  298;  Mech.  &  Tr.  Bank  v.  Gordon,  5  La.  An., 
604;  Orange  Co.  Bank  v.  Brown,  9  Wend.,  85;  Gibbon  v.  Paynton,  4 
Burr.,  2298. 

» Cole  V.  Goodwin,  19  Wend.,  251. 

4  11Cush.,97. 

64  Bing.,  218. 


LIMITING   LIABILITY   OF   CAHKIEES.  313 

there  laid  down  by  Best,  C.  J.,  that  it  is  not  enough  to  post 
them  conspicuously  about  the  office  or  place  of  business  of 
the  carrier,  where  the  shipper  may  see  and  read  them.  It 
is  important  that  the  customer  should  not  only  see,  but 
understand,  the  notice,  and  the  carrier  should  be  to  the 
pains  to  make  him  comprehend  the  restrictions  and  limita- 
tions upon  his  liability  which  he  proposes  to  claim.  And 
in  the  case  of  Kerr  v.  Willan,^  on  a  motion  for  new  trial, 
before  a  full  bench,  the  court  refusing  the  rule,  and  affirm- 
ing the  decision  of  Lord  Ellenbokough,  said :  "  If  the 
agent  could  not  read  he  might  hear,  or,  at  all  events,  a 
handbill  might  be  delivered  to  him,  to  be  taken  to  his 
principal,"  and  thus  the  notice  be  made  effectual.^ 

§  545.  Party  Unable  to  Read  Notice. —  So  in  an  action 
brought  to  recover  a  quantity  of  coin,  which  plaintiff  had 
placed  in  a  trunk  with  his  personal  baggage,  the  whole 
being  lost  in  transit  over  the  defendant's  line,  the  de- 
fense was  that  the  defendant,  a  railroad  corporation,  had 
published  a  notice  that  it  would  carry  fifty  pounds  of 
baggage  for  each  passenger,  and  that  passengers  were  "  ex- 
pressly prohibited  from  taking  anything  as  baggage  but 
their  wearing  apparel,  which  will  be  at  the  risk  of  the 
owner."  Plaintiff  had  given  no  notice  of  the  contents  of 
his  trunk,  but  had  paid  for  extra  weight,  and,  being  a  Ger- 
man, was  unable  to  read  defendant's  notices,  even  if  his 
attention  had  been  specially  directed  to  them.  The  corpo- 
ration was  held  liable  as  an  insurer,  according  to  the  rules 
of  common  law  governing  carriers,  for  the  reason  that  it 
failed  to  show  that  the  contents  of  the  notices  intended  to 


13  Stark.,  53. 

-  In  order  for  the  carrier  to  limit  the  extent  of  his  liability  it  is  necea- 
saiy  that  he  either  give  th^  notice  in  a  manner  so  it  will  be  understood, 
or,  if  his  objections  are  to  a  particular  package  on  account  of  supposed 
concealment  of  the  value  of  its  contents,  he  must  make  inquiry ;  for  if 
there  is  no  concealment  on  the  part  of  the  sliippor  the  carrier  will  be 
bound  for  its  full  value  in  case  of  loss.  Macklin  v.  Waterhouse,  5 
Bing.,  313;  Titchburne  v.  White,  1  Str.,  145. 


314  NOTICE   BY   WHICH    LIABILITIES   EXTINGUISHED. 

qualify  its  liability  ever  came  to  the  knowledge  of  the 
plaintiff.^ 

§  546.  Taking  Paper  Containing  Advertisement,  In- 
snllieient. —  In  Eowley  v.  Home,-  it  Avas  in  evidence  that 
plaintiff  had  regularly  taken  a  weekly  newspaper  in  which 
defendant's  advertisements  were  inserted  for  over  three 
years.  This  the  court  held  insufficient  to  raise  a  legal  pre- 
sumption of  plaintiff's  knowledge  of  the  contents  of  such 
advertisement,  as  it  could  not  be  intended  that  a  party  read 
all  the  contents  of  any  newspaper  he  might  take. 

§  547.  To  Whom  Given  —  Servant. —  In  one  case,  plamt- 
iff's  trunk  was  deposited  by  the  porter  with  a  postmaster  to 
be  delivered  to  the  driver  of  defendants'  stage-coach.  The 
doctrine  was  here  acknowledged,  that,  had  notice  of  any 
reofulations  limitine;  defendants'  liabilitv  as  common  carriers 
been  communicated  to  plaintiff  or  his  servant,  the  porter, 
such  notice  would  have  qualified  the  carriers'  responsibiUty. 
But  the  mere  fact  that  the  postmaster  through  whose  hands 
the  trmik  passed  to  defendants'  agent  knew  that  defend- 
ants had  posted  notices  "  that  they  would  not  be  account- 
able for  any  baggage  unless  the  fare  was  paid  and  the  same 
entered  on  the  way-bill,"  would  not  affect  plaintiff,  as  the 
postmaster  could  not  be  regarded  as  their  agent.^ 

§  548.  Printed  in  Bill  of  Lading,  Insufiftcient.— A  con- 
dition printed  in  the  bill  of  lading,  that  the  owner  assumes 
all  risk,  has  been  held  no  evidence  of  a  contract  limiting 
the  hability  of  the  carrier,  where  the  biU  was  not  seen  and 
assented  to  by  the  owner,  prior  to  the  shipment.* 

§549.  Conflicting  Notices.— -  AVhere  a  notice  in  large 
letters,  written  on  a  board  and  fastened  up  in  the  coach 
office,  declared  that  the  proprietors  of  the  coaches  would 
not  be  responsible  for  plate  and  jewels  delivered  for  trans- 

1  Camb.  &  Amb,  Railw.  v.  Baldauf,  16  Pa.  St.,  67. 
•iSBing.,  2. 

3  Bean  r.  Green,  12  Me.,  422. 

•»Flavey  v.  Northern  Tx'ansp,  Co.,  15  Wis.,  129;  Erie,  etc.,  Transporta- 
tion Co.  V.  Dater,  8  Cent.  L.  J.,  293. 


LIMITING    LIABILITY    OF    CAEKIEES.  815 

portation,  however  small  the  value,  unless  entered  and  paid 
for  as  such ;  but  such  proprietor  also  circulated  a  handbill 
stating  "  that  he  would  not  be  answerable  for  any  article 
above  the  value  of  £5,  unless  entered  as  such  and  paid  for 
accordingly,"  it  was  held  that  the  handbill  might  be  pre- 
sumed to  contain  the  whole  of  the  limitations  upon  the  car- 
rier's liability,  which  he  intended  to  claim.  ^ 

§  550.  Same. —  So,  in  Munn  v.  Baker,^  where  the  carriei's 
had  given  two  public  notices,  one  of  which,  limiting  their 
liabihty  as  carriers,  was  printed  in  large  letters,  and  posted 
in  the  defendants'  counting-house  and  warehouse  at  the 
wharf,  and  the  other  was  on  a  smaller  paper,  containing  no 
such  limitation,  Lord  Ellenbokough  was  of  the  opinion 
that  by  the  delivery  of  a  notice  without  the  hmitation,  the 
defendants  had  nuUified  the  notice  which  contained  the 
limitation.  Having  given  two  notices,  they  were  bound  by 
that  least  favorable  to  themselves. 

§  551.  Agent's  Acts  (joveriied  by  Notice  to  Principal. — 
A  hardship  is  sometimes  worked  by  the  rule  which  gives 
effect  to  Hmitations  and  restrictions  upon  the  habihty  of 
common  carriers,  upon  notice  to  the  owner  of  the  goods 
carried,  irrespective  of  the  assent  of  such  owner,  as  requu'ed 
by  most  of  the  American  cases.  As  where  notice  was  com- 
municated to  one,  whose  agent,  without  any  knowledge  or 
information  of  the  limited  liabihty,  sent  a  package  of  bank- 
bills  to  his  principal  by  the  carrier,  and  such  package  was 
lost.  Here  there  could  be  no  room  for  a  presumption  of 
assent  to  the  terms  of  the  notice  from  the  fact  that  the 
package  was  intrusted  to  the  carrier  after  the  receipt  of  the 
notice,  because  the  bills  were  not  intrusted  to  the  carrier  by 
one  who  knew  that  such  notice  had  been  given ;  yet  it  was 
held  that  the  carrier  was  exonerated  because  of  notice  to 
the  principal.^ 

iCobden  v.  Bolton,  2  Camp.,  108. 

-'3  Stark.,  255. 

SMahew  v.  Eames,  3  B.  &  C,  601. 


316  NOTICE   BY   WHICH    LIABILITIES    EXTINGUISHED. 

§  552.  General  Doctrine  in  America  —  Cannot  be  Lim- 
ited hy  Notice. —  The  weight  of  American  authority,  inde- 
pendent of  statutory  provisions,  is  decidedly  against  the 
doctrine  allowing  the  liability  of  common  carriers  to  be  lim- 
ited or  restricted  by  mere  notice.^  Cases  have  even  been 
interpreted  by  an  able  text  writer  as  going  the  length  of 
maintaining  that  carriers  could  not  exonerate  themselves 
from  their  general  liability,  either  by  notice  brought  home 
to  the  owner  of  goods,  at  the  time  they  were  delivered  for 
carriage,  nor  even  by  express  contract  to  that  effect.'^ 

§  553.  May  he  by  Contract. —  But  the  more  prevalent 
opinion  seems  to  be  that  carriers  may  exionerate  themselves 
from  the  liability  imposed  by  common  law,  by  contract  be- 
tween the  shipper  and  the  carrier,  though  not  by  mere 
notice  from  the  latter  to  the  former.* 

iFish  V.  Chapman,  2  Ga.,  349;  Farmers  &  Mechanics'  Bank  v.  Cham- 
plain  Tr.  Co.,  23  Vt.,  186;  Jones  v.  Voorhees,  10  Ohio,  145;  Infra. 

2  Redf.  on  Railways,  §  159,  T[  6 ;  Cole  v.  Goodwin,  19  Wend.,  251 :  HoUis- 
ter;y.  Nowlen,  19  Wend.,  234;  Gould  v.  HiU,  2  Hill,  623;  Cam.  &  Amb. 
R'y  V.  Belknap,  21  Wend.,  354;  Clark  v.  Faxton,  21  Wend.,  153;  PoweU 
V.  Myers,  26  Wend.,  591. 

3 Steele  v.  Townsend,  37  Ala.,  247;  Camd.  &  Amb.  R.  R.  Co.  v.  Bel- 
knap, 21  Wend.,  354;  Farmers  &  Mechanics'  Bank  v.  Champlain  Transp. 
Co.,  23  Vt.,  186;  York  Co.  v.  Central  R.  R.,  3  Wall.,  107;,Walker  v. 
Ti-ansp.  Co.,  id.,  150;  Lee  v.  Marsh,  43  Bai-b.,  102;  111.  Central  R.  R. 
Co.  V.  Morrison,  19  111.,  136;  Gott  v.  Dinsmore,  111  Mass.,  45;  Snider  v. 
Adams  Ex.  Co.,  63  Mo.,  376;  N.  J.  Steam,  etc.,  Co,  v.  Merchants'  Bank, 
6  How.,  344;  Dow  v.  N.  J,  Steam,  etc.,  Co.,  11  N,  Y.,  485;  Parsons  v. 
Monteath,  13  Bai'b.,  353;  Fillebrown  u  Raihoad,  55  Me.,  462;  McMillen 
V.  Raih-oad  Co.,  16  Mich.,  79 ;  Kimball  v.  Raih-oad,  26  Vt.,  247 ;  Davidson 
V.  Graliam,  2  Oliio  St.,  131;  Adams  Ex.  Co.  v.  Haynes,  42  lU.,  89;  El. 
Cent.  R.  R.  Co.  v.  Frankenberg,  54  111.,  88;  Camden,  etc.,  R.  R.  Co.  v. 
Baldauf,  16  Pa,  St.,  67;  Farnliam  v.  Railroad,  55  Pa.  St.,  53;  Grace  v. 
Ex.  Co.,  100  Mass.,  505;  Hoadley  v.  N,  T.  Co.,  115  Mass.,  304;  Perry 
V.  Thompson,  98  Mass.,  249;  Roberts  v.  RUey,  15  La.  An.,  103;  KoUman 
V.  Ex.  Co.,  3  Kan.,  205;  Boorman  v.  Ex.  Co.,  21  Wis.,  152;  Orndorff  v. 
Adams  Ex.  Co,,  3  Bush,  194;  Adams  Ex.  Co.  v.  Guthrie,  9  Bush,  78; 
Adams  Ex.  Co,  v.  Loeb,  7  Bush,  501;  McCann  v.  Railroad,  20  Md.,  202; 
Mobile,  etc,  R,  R,  Co.  v.  Weiner,  49  Miss.,  725;  Southern  Ex,  Co,  v. 
Moon,  39  Miss.,  822;  Evansville,  etc.,  R,  R.  Co,  v.  Young,  28  Ind.,  516; 
Virginia,  etc.,  R.  R,  v.  Sayers,  36  Gratt.,  328;  Smith  v.  Raikoad,  64  N. 


LIMITING    LIABILITY    OF    CAERIERS.  317 

§  554.  Notice  and  Assent. —  It  is  true  that  many  of  the 
adjudged  cases  m  this  country  place  the  earner's  exemption 
from  liability  upon  the  ground  of  his  having  given  notice 
to  the  shipper  that  he  would  not  be  held  to  the  full  measure 
of  his  common  law  liability  in  undertaking  to  transport  cer- 
tain property,  and  that  the  shipper  has  assented  to  the  terms 
of  such  limited  liability;  ^  but  this  notice  and  assent  amounts 
to  nothing  less  than  an  agreement  between  the  parties.  If 
one  party  gives  the  other  express  notice  that  he  will  under- 
take the  performance  of  a  particular  service,  only  upon  cer- 
tain conditions,  and  the  other  accepts  the  service  expressly 
upon  such  conditions,  there  is  nothing  wanting  to  render  this 
a  matter  of  agreement  between  the  parties  to  the  arrange- 
ment, and  such  agreement  will  necessarily  include  the  con- 
ditions upon  which  the  service  was  performed,  as  well  as 
the  performance  of  the  service  itself.- 

§  555.  Assent  Must  l)e  Toliintary. — The  reciprocal  obli- 
gations arising  from  an  undertaking  by  a  common  carrier 
to  transport  goods,  has,  however,  been  placed  on  higher 
grounds,  in  the  case  of  a  railroad  corporation,  than  that  of 
a  mere  voluntary  service.  It  is  held  to  be  the  duty  imposed 
by  law  upon  such  carriers,  to  transport  property  for  all  per- 
sons indifferently.  This  is  a  service  which  they  cannot  re- 
fuse to  perform,  nor  can  they  surround  its  performance  with 
such  conditions  and  restrictions  of  their  responsibility  as 
will  compel  shippers  to  release  them  from  an}^  obligation 

C,  235;  Michigan,  etc.,  R.  R.  Co.  v.  Heatou,  37  Ind.,  448;  Baltimore, 
etc.,  R.  R.  Co.  V.  Skeels,  8  W.  Va.,  556;  Camp  v.  Steamboat  Co.,  43 
Comi.,  333;  Simon  x\  The  Fung  Shuey,  21  La.  An.,  363;  Westcott  v. 
Fargo,  63  Barb.,  353. 

1  Oppenheimer  v.  U.  S.  Ex.  Co.,  69  111.,  62;  Field  v.  Ch.  &  R.  I.  R.  R. 
Co.,  71  111.,  458. 

2  3  Redfield  on  Railways,  §  159,  T[  2 ;  Grace  v.  Adams  Ex.  Co.,  100  Mass., 
505;  State  v.  Townsend,  37  Ala.,  247;  Magee  v.  The  Railroad,  45  N.  Y., 
514;  Long  v.  The  Raih-oad,  50  N.  Y.,  76;  Belger  v.  Dinsmore,  51  N.  Y., 
166;  Kirklandv.  Dmsmore,  63  N.  Y.,  171;  King  r.  Woodbridge,  34  Vt., 
565;  Mulligan  v.  Railroad,  36  Iowa,  181;  Evansville,  etc.,  R.  Co.  v. 
Androscoggin  MiUs,  23  WaU.,  594;  Bank  of  Kentucky  v.  Adams  Ex.  Co., 
93  U.  S.,  174. 


318  NOTICE   BY    WHICH    LIABILITIES    EXTINGUISHED. 

imposed  by  law  with  reference  to  the  care  to  be  taken  of 
the  property  while  in  their  possession.  The  only  manner  in 
which  they  can  be  exonerated  from  their  liability  is  by  a 
free  and  full  agreement  of  the  parties.^  In  Illinois,  at  least 
the  conrts  insist  upon  something  more  than  tacit  assent  on 
the  part  of  the  shipper.  Mere  acceptance  of  a  receipt  con- 
taining the  stipulation  relied  on  by  the  carrier  wnU  not  serve 
the  purpose.  To  bind  the  shipper  it  must  appear  that  his 
attention  "was  called  to  the  limitation  of  habihty,  or  that  he 
knew  and  assented  to  it.- 

§  556.  Same. — With  this  view  of  the  matter,  it  would 
seem  that  something  more  than  the  tacit  assent  of  the  owner 
of  the  goods  carried  would  be  requisite.  This  agreement, 
to  render  it  binding,  must  have  for  its  support,  what  is 
necessary  in  all  contracts  —  a  consideration.^  If  the  owner 
of  the  goods  may  insist  upon  the  carriage  of  his  property 
by  the  carrier  as  a  matter  of  rights  and  the  carrier  is  bound 
to  accept  them  for  transportation  as  a  correlative  divty^  sub- 
ject to  the  responsibility  imposed  by  law  upon  carriers,  the 
performance  of  this  positive  duty  could  not  be  construed 
into  a  consideration  for  the  contract  by  which  the  owner 
consents  to  a  qualification  of  the  carrier's  liabihty.  Un- 
less there  should  be  some  consideration  passing  from  the 
carrier  to  the  owmer  of  the  goods,  as  abatement  in  the 
charges,  or  other  advantage,  which  he  w^as  not  positively 
entitled  b}^  law  to  demand,  such  a  contract  would  possess 
no  more  vahdity  than  an  agreement  between  the  maker 
and  the  payee  of  a  promissory  note,  past  due,  for  the  ex- 

1  Mich.  Cent.  R.  R.  v.  Hale,  6  Mich.,  243 ;  McMill  v.  M.  S.  &  N.  I.  R.  R. 
Co.,  16  Mich.,  79;  Adams  Ex.  Co.  v.  Guthrie,  9  Bush,  78;  Messenger  v. 
Penn.  R.  R.  Co.,  37  N.  J.  Law,  531;  Brown  v.  Grand  Tnink  R.  R.,  54 
N.  H.,  535. 

-  Adams  Ex.  Co.  v.  Haynes,  42  111.,  891 ;  Adams  Ex.  Co.  v.  Stattnners, 
61  111.,  184;  Field  v.  Railroad,  71  lU.,  458:  Anchor  Line  v.  Dater,  68  HI., 
369.  See,  also,  C.  H.  &  D.  R.  Co.  v.  Pontius,  19  Ohio  St.,  221;  Welsli  v. 
Pittsburg,  etc.,  R.  Co.,  10  Ohio  St.,  65;  Games  u.  Union  Tr.  Co.,  28  Ohio 
St.,  418;  Tel.  Co.  v.  Griswold,  37  Ohio  St.,  301. 

31  Pars,  on  Cont.,  427,  and  cases  cited. 


LIMITING    LIABILITY    OF   CAKEIEKS.  319 

tension  of  time,  in  consideration  of  the  payment  of  a  portion 
of  the  principal.^ 

§  557.  Views  of  Judge  Redfield.— Judge  Eedfield,  in 
his  excellent  work  on  Railwaj^s,-  expresses  views  upon  this 
subject  which  seem  to  lead  to  the  foregoing  conclusions. 
Says  the  learned  author :  "  But  a  notice  brought  home  to 
the  owner  of  the  goods,  as  evidence,  merits  a  very  different 
consideration  in  this  species  of  baihuent  from  any  other 
where  there  is  no  obligation  on  the  bailee  to  assume  the 
duty.  In  the  case  of  a  carrier,  with  whom  it  is  not  optional 
altogether  whether  to  carry  goods  offered  or  not,  but  where 
he  must  carry  such  goods  as  he  is  accustomed  to  carry,  upon 
the  general  terms  of  liability  imposed  by  the  law,  or  submit 
to  an  action  for  damages,  and  where  every  one  desiring 
goods  carried  has  the  option  to  have  them  carried  without 
restriction  of  the  carrier's  duty,  unless  he  choose  to  waive 
some  portion  of  his  legal  rights  for  present  convenience  or 
ultimate  peace,  the  mere  fact  of  such  notice  restricting  the 
carrier's  liability  being  brought  home  to  the  knowledge  of 
the  owner  of  goods,  before  or  at  the  time  of  depositing 
them  with  the  carrier,  is  no  certain  ground  of  inferring 
whether  the  carrier  consented  to  recede  from  his  notice  and 
perform  the  duty  which  the  law  imposes  upon  him,  or  the 
owner  of  the  goods  consented  to  waive  some  portion  of  his 
legal  rights.  Perhaps,  upon  general  grounds  of  inference, 
it  might  be  regarded  as  more  logical  and  more  reasonable 
to  infer  that  the  carrier  receded  from  an  illegal  pretension, 
than  the  owner  of  the  goods  from  a  legal  one."  * 


1 1  Story  on  Prom,  Notes,  §  414,  note. 

2  2  Redf .  on  Eailways,  §  159. 

3  Where  the  receipt  or  bill  of  lading  is  relied  on  to  limit  the  carrier's 
liability  as  a  contract,  it  must  have  been  given  at  the  time  the  goods 
were  received,  or,  if  afterwards,  its  subsequent  delivery  must  be  under 
a  general  understanding.  The  carrier  cannot  make  conditions  after  ac- 
cepting the  service,  Gaines  v.  Tr.  Co.,  28  Ohio  St.,  418 ;  Blossom  r.  Grif- 
fin, 13  N.  Y.,  569;  Shelton  v.  Merchants'  D.  T.  Co.,  59  N.  Y.,  258;  Pruitt 
V.  Railroad,  63  Mo.,  527;  Bostwick  v.  Raikoad,  45  N.  Y.,  713. 


320  NOTICE   BY   WHICH    LIABILITIES    EXTINGUISHED. 

§  558.  Notice  Never  Exempts  from  Negligence. —  Where 
it  is  admitted  that  carriers  may  limit  their  common  law  lia- 
bility by  notice  to  the  owners  of  property  carried,  by  spe- 
cially enumerating  the  risks  against  which  they  decline  to 
insure;  and  where  there  is  such  notice  and  assent  as  to 
amount  to  an  agreement  between  the  parties  that  the  car- 
rier shall  be  released  from  the  burthens  imposed  by  reason 
of  their  character  of  common  carriers,  the  benefits  of  this 
exemption  will  not  extend  to  losses  which  are  the  result  of 
the  nefjliffence  of  the  carrier  or  his  servants.^  Some  of  the 
cases  cited  take  the  ground  that  not  only  will  notice  be  in- 
suificient  for  the  purpose  of  excusing  negligence  in  the  car- 
rier, but  that  an  express  contract  for  that  purpose  will  be 
equally  unavailing,  for  the  reason  that  such  contracts  are 
against  public  policy.^ 


1  Cole  V.  Goodwin,  19  Wend.,  251 ;  Ashmore  v.  Steam  Tow  and  Trans. 
Co.,  28  N,  J.,  180;  Riley  v.  Home,  5  Bing.,  217;  Sleat  v.  Fagg,  5  Barn. 
&  Aid.,  342;  Bii-kett  v.  Willan,  2  Barn.  &  Aid.,  356;  Bodenham  v.  Ben- 
nett, 4  Price,  31;  Smith  v.  Home,  8  Taunt.,  144;  Newborn  v.  Just,  2 
Carr.  &  P.,  76;  Wyld  v.  Pickford,  8  M.  &  W.,  443;  Orndorff  v.  Adams 
Ex,  Co.,  8  Bush,  194;  Rhodes  v.  Louisv.  &  Nashv.  R.  R.  Co.,  9  Bush, 
688. 

•2  Ashmore  V.  Penn.  Steam  Tow  &  Trans.  Co.,  28  N.  J.  (Law),  180;  Cole 
V.  Goodwin,  19  Wend.,  251;  Sager  v.  Portsm.,  S.  &  P.  &  E.  R.  R.,  31 
Me.,  228;  Camd.  &  Amb.  R'y  v.  Baldauf,  16  Pa.  St.,  67;  Bingham  v. 
Rogers,  6  W.  &  S.,  495;  Penn.  R'y  Co.  v.  McCloskey,  23  Pa.  St.,  526; 
Baker  v.  Brinson,  9  Rich.,  201;  Reno  v.  Hogan,  13  B.  Mon.,  63;  Hall  v. 
Cheney,  36  N.  H.,  26;  PoweU  v.  Penn.  R.  R.  Co.,  32  Pa.  St.,  414;  Kansas 
City,  etc.,  R.  Co.  v.  Simpson  (Kan.),  2  Pac.  Rep.,  831 ;  Jones  v.  Voorliies, 
10  Ohio,  145;  Wilson  v.  Hamilton,  4  Ohio  St.,  722 ;  Cleveland,  etc.,  R. 
Co.  V.  Curran,  19  Ohio  St.,  1 ;  Cincinnati  R.  Co.  v.  Pontius,  19  Ohio  St., 
221 ;  Union  Ex.  Co.  v.  Graham,  26  Ohio  St.,  595;  Pennsylvania  R.  Co.  v. 
Henderson,  51  Pa.  St.,  315;  Empure  T.  Co.  v.  Oil  Co.,  63  Pa.  St.,  14; 
American  Ex.  Co.  v.  Bank,  69  Pa.  St.,  394;  School  Disti'ict  v.  Railroad, 
102  Mass.,  552;  Commonwealth  v.  Railroad,  108  Mass.,  7;  Ketchum  v. 
American,  etc.,  Ex.  Co.,  52  Mo.,  390;  Read  v.  St.  Louis,  etc.,  R.  Co.,  60 
Mo.,  199;  South,  etc.,  R.  Co.  v.  Henlein,  52  Ala.,  486;  Berry  v.  Cooper, 
28  Ga.,  543;  Mobile,  etc.,  R.  Co.  v.  Hopkms,  41  Ala.,  486;  Oliio,  etc.,  R. 
Co.  V.  Selby,  47  Ind.,  471;  Rose  v.  Railroad,  39  la.,  246;  Jacobus  v.  Rail- 
road, 20  Minn.,  125. 


LIMITING    LIABILITY    OF    CAERIEES.  321 

§  559.  Example  of  Express  Contract  Held  Inopera- 
tive.—  In  an  important  case  decided  in  tlie  supreme  com't 
of  the  United  States/  where  an  express  carrier,  by  special 
contract  with  the  transportation  company,  was  allowed  to 
carry  packages  upon  their  boats,  under  the  immediate  care 
and  oversight  of  such  expressman,  Avith  the  express  stipula- 
tion that  all  persons  delivering  parcels  to  the  expressman 
for  carriage  should  be  notified  that  he  alone  was  responsible 
for  their  safety,  there  was  annexed  to  the  receipt  given  by 
him  for  goods,  the  following  notice,  which  was  also  required 
to  appear  in  connection  with  his  public  advertisement: 
"  Take  notice,  William  F.  Harnden  is  alone  responsible  for 
the  loss  or  injury  of  any  articles  or  property  committed  to 
his  care,  nor  is  any  risk  assumed  by,  nor  can  any  be  at- 
tached to,  the  proprietors  of  the  steamboats,  in  which  his 
crate  may  be  and  is  transported,  in  respect  to  it  or  its  con- 
tents at  any  time."  The  expressman  had  undertaken  the 
carriage  of  a  considerable  sum  in  specie,  for  the  bank,  and 
the  boat  on  which  he  was  transporting  it  from  JSTew  York 
to  Boston,  through  the  gross  mismanagement  of  the  com- 
pany's agents  and  servants,  was  burned,  and  the  specie 
totally  lost.  In  pronouncing  the  opinion  of  the  com-t,  Mr. 
Justice  Nelson  gives  the  following  able  and  satisfactory  ex- 
planation of  the  rule  governing  the  case :  "  The  special 
agreement  in  this  case  under  which  the  goods  were  shipped 
provided  that  they  should  be  conveyed  at  the  risk  of  Harn- 
den, and  that  the  respondents  were  not  to  be  responsible  to 
him,  or  to  his  employers,  in  any  event,  for  loss  or  damage. 
The  language  is  general  and  broad,  and  might  very  well 
comprehend  every  description  of  risk  incident  to  the  ship- 
ment. But  we  think  it  would  be  going  further  than  the 
intent  of  the  parties,  upon  any  fair  and  reasonable  con- 
struction of  the  agreement,  were  we  to  regard  it  as  stipulat- 
ing for  wilful  misconduct,  gross  negligence,  or  want  of 
ordinary  care,  either  in  the  seaworthiness  of  the  vessel,  her 

1  New  Jersey  Steam  Nav.  Co.  v.  Merchants'  Bank,  6  How,,  344. 
21 


322  NOTICE    BY    WHICH    LIABILITIES    EXTINGUISHED. 

proper  equipment  and  furniture,  or  in  her  management  by 
the  master  and  hands.  This  is  the  utmost  effect  ^hat  was 
given  to  the  general  notice,  both  in  England  and  in  this 
country,  when  allowed  to  restrict  the  carrier's  habiUty, 
although  as  broad  and  absolute  in  its  terms  as  the  special 
agreement  before  us  (Story  on  Bailments,  §  570);  nor  was  it 
allowed  to  exempt  him  for  accountability  for  losses  occa- 
sioned by  a  defect  in  the  vehicle  or  mode  of  conveyance 
used  in  the  transportation.  Although  he  was  allowed  to 
exempt  himself  from  losses  arising  out  of  events  and  acci- 
dents against  which  he  was  a  sort  of  insurer,  j^et,  inasmuch 
as  he  had  undertaken  to  carry  the  goods  from  one  place  to 
another,  he  was  deemed  to  have  incurred  the  same  degree 
of  responsibility  as  that  which  attaches  to  a  private  person 
engaged  casually  in  the  like  occupation,  and  was  therefore 
bound  to  use  ordinary  care  in  the  custod}^  of  the  goods,  and 
in  their  deUvery,  and  to  provide  proper  vehicles  and  means 
of  conveyance  for  their  transportation.  This  rule,  we  think, 
should  govern  the  construction  of  the  agreement  in  ques- 
tion." 

§  560.  Cases  Arising  Under  English  Statute. —  By  the 
English  Railway  &  Canal  Traffic  Act,^  the  current  of  author- 
ity in  that  country  is  somewhat  changed  from  what  it  was 
in  the  time  of  Lord  Ellenborough,  when  he  expressed  re- 
gret at  the  encouragement  given  by  the  precedents  to  negli- 
gence.- By  this  act,  notices,  and  even  contracts  exempting 
common  carriers  from  liability,  are  made  the  subject  of  re- 
-  vision  by  the  courts,  as  to  the  reasonableness  of  the  con- 
ditions upon  which  the  carriage  is  undertaken.-^  Under  this 
statute  it  has  been  decided  that  a  notice  by  a  carrier  by  rail, 
assented  to  by  the  shipper,  that  in  regard  to  live  stock  they 
Avould  not  be  liable  for  any  injury  or  damage  howsoever 

1 17  and  18  Vict.,  ch.  31,  §  7. 

2  Ante,  §  536. 

3  Peek  u.  North  Staffordshire  R'y  Co.,  10  H.  L,  Cas.,  478;  Lloyd  v, 
Waterford  &  Limerick  R'y  Co.,  9  Law  T.  (N.  S.),  89;  Allday  u.  Great 
West.  R'y  Co.,  11  Jur.  (N.  S.),  13. 


LIMITING   LIABILITY   OF   CAKEIEKS.  323 

caused,  was  unreasonable,  and  would  not  excuse  the  com- 
pany, where  the  loss  occurred  from  a  defect  in  a  box  in 
which  they  undertook  to  carry  a  horse.'  Where  the  carrier 
gave  notice  that  he  would  not  be  responsible  for  packages 
of  a  particular  description,  he  was  nevertheless  held  liable 
to  the  owner  of  one  of  such  packages,  which  he  undertook 
to  transport,  and  delivered  to  the  wrong  person.'- 

§  561.  Further  Illustration  of  Same. —  In  a  case  aris- 
ing under  the  Enghsh  Carriers'  Act,  the  court,  in  determining 
whether  the  conditions  upon  which  goods  were  accepted  for 
transportation,  or  the  special  contract  between  the  shipper 
and  the  carrier  was  reasonable,  considered  the  whole  matter 
brought  before  them,  and  held  that  a  condition  that  the  com- 
pany would  not  be  responsible  for  the  loss,  detention  or 
damage  of  any  package  insufficiently  or  improperly  packed 
was  unjust  and  unreasonable,  though  it  was  admitted  that 
regulations  as  to  the  time  within  which  a  claim  for  damages 
should  be  made  belonged  to  a  class  which  might  be  the 
j)roper  subject  of  stipulation  between  the  parties.' 

§  562.  Notice  of  Arrival. —  The  notice  of  arrival,  when 
required  of  common  carriers,  is  a  duty  which  is  incidental 
to  the  peculiar  circumstances  by  which  the  most  extensive 
public  carriers  are  prevented  from  actually  delivering  the 
articles  transported  to  the  immediate  possession  of  the  con- 
signees. The  instances  are  rare  in  which  it  is  practicable 
for  those  engaged  in  carrying  by  water,  to  make  personal 
dehvery  of  goods  carried  on  their  vessels.  The  same  may 
be  said  of  carriers  by  rail.  The  best  equivalent  for  such 
delivery  is,  when  the  goods  have  reached  their  place  of  con- 
signment, to  give  notice  to  the  consignee. 

§  563.  Will  Terminate  Liability  as  Carrier. —  Whether 
the  giving  of  such  notice  of  arrival  be  an  absolute  duty  im- 

1  McManus  v.  Lancashire,  etc.,  R'y,  4  H.  &  N.,  327. 

2Dujff  V.  Budd,  3  Brod.  &  Bing.,  177;  Beck  v.  Evans,  16  East,  244; 
Bodenhani  v.  Bennett,  4  Pi-ice,  31. 

3  Simons  v.  Great  West.  R'y  Co.,  37  Eng.  L.  «&;  Eq.,  286;  London  &  N. 
W.  R'y  Ck).  V,  Dunham,  18  C.  B.,  826. 


324  NOTICE  BY  wnicn  liabilities  extinguished. 

posed  upon  the  carrier  or  not,  there  can  be  no  doubt  that 
when  a  vessel  has  completed  her  voyage,  and  reached  the 
port  of  dehvery,  or  when  the  carrier  by  rail  has  reached  the 
station  to  which  the  goods  are  consigned,  such  carrier, 
whether  by  land  or  water,  cannot  be  held  liable  for  the  care 
and  safe-keeping  of  the  goods,  as  carrier,  at  the  option  of 
the  consignee.  It  would  be  imposing  an  unconscionable 
burden  upon  them  to  say  that  they  had  no  means  by  which 
they  might  put  an  end  to  the  transit  of  the  goods,  short  of 
personal  delivery  to  the  consignees  at  their  several  places  of 
business,  unless  such  places  of  business  were  at  a  convenient 
wharf  or  dock,  or  upon  the  immediate  hne  of  the  railway. 
It  has  accordingly  been  held  that  carriers  of  this  class  may 
exonerate  themselves  from  such  liabihty,  by  giving  reason- 
able notice  to  the  consignee  of  the  arrival  of  the  articles 
transported.* 

§  564.  Reasonable  Time  for  Removal  After  Kuowledge 
of  Arrival. —  And  even  when  there  is  no  direct  notice  from 
the  carrier  to  the  consignee  that  the  goods  have  arrived, 
but  knowledge  of  such  fact  is  brought  home  to  him,  from 
whatever  source  derived,  the  carrier  could  only  be  held 
liable  until  the  consignee  had  a  reasonable  time  within 
which  to  remove  the  goods,  after  knowledge  of  their  arrival."'^ 

§  565.  Classification  of  Conflicting  Authorities. —  The 
rule  as  to  the  duty  of  carriers  to  give  notice  of  the  arrival 
of  goods  is  by  no  means  so  uniform  as  that  requiring  the 
consignee  to  act  at  his  peril  upon  such  notice  when  given. 
Judge  CooLET,  in  rendering  the  opinion  of  the  court  in  Mc- 
Millan V.  Michigan  Southern  &  Northern  Indiana  Eaih^oad 

1  Chickering  v.  Fowler,  4  Pick.,  371 ;  Northern  v.  Williams,  6  La.  An., 
578;  The  Ship  Grafton,  Olcott's  R.,  43;  Stowe  v.  N.  Y.,  Bost.  &  Prov. 
E.  R.  Co.,  113  Mass.,  521 ;  Robinson  v.  Chittenden,  14  N.  Y.  Sup.  Ct.,  133 ; 
Cope  V.  Cordova,  1  Rawle,  203. 

2 Norway  Plains  Co.  v.  Boston  &  M.  R.  R.  Co.,  1  Gray,  263;  Redmon 
V.  Steamboat  Co.,  46  N.  Y.,  583;  RusseU  Mfg.  Co.  v.  Steamboat  Co.,  50 
N.  Y.,  121 ;  Gleadell  v.  Tliomson,  56  N.  Y.,  194;  McAndrew  v.  Whitlock, 
52  N.  Y.,  40;  Crawford  v.  Clark,  15  111.,  561. 


LIMITING   LIABILITY   OF   CAKRIERS.  325 

Company,'  divides  the  conflicting  authorities  upon  this  ques- 
tion, as  respects  carriers  by  railroad,  into  three  classes: 
1.  Cases  where  it  is  held  that  the  liability  of  the  carrier 
ceases  at  the  terminus  of  the  route  and  the  unloading  of  the 
goods,  regardless  of  the  giving  of  notice,  or  the  time  of 
removing  the  property.  2.  Such  as  hold  the  carrier  liable 
after  arrival  of  the  goods,  and  a  reasonable  time  for  the  con- 
signee to  remove  them,  but  requiring  the  consignee  to  take- 
notice  of  such  arrival.  3.  Those  cases  where  it  is  held  that 
the  carrier's  liability  continues  until  notice  to  the  consignee, 
and  a  reasonable  time  thereafter  to  enable  him  to  take  pos- 
session of  the  goods.  In  the  course  of  the  opinion  the 
learned  judge  takes  occasion  to  say :  "  I  am  unable  to  dis- 
cover any  ground,  which  to  me  is  satisfactory,  on  which  a 
common  carrier  of  goods  can  excuse  himself  from  personal 
delivery  to  the  consignee,  except  by  that  which  usage  has 
made  a  substitute.  To  require  him  to  give  notice  when 
the  goods  are  received,  so  that  the  consignee  may  know 
when  to  call  for  them,  imposes  upon  him  no  unreason- 
able burden."  ^  A  brief  review  of  the  authorities  will  show 
that  this  question  is  decided  so  differently,  in  different 
locaUties,  that  the  attempt  to  reconcile  them  must  be  utterly 
futile. 

§  56G.  Massachusetts,  Illinois,  Iowa. —  In  the  state  of 
Massachusetts  the  doctrine  is  laid  down,  where  goods  shipped 
by  railroad  and  not  called  for  on  their  arrival  at  the 
place  of  destination  are  unloaded  and  separated  from  the 
ffoods  of  other  consignees,  and  are  stored  in  suitable  ware- 
houses  or  depots  provided  by  the  carriers  for  their  protec- 
tion, that  then  the  duty  of  the  proprietors  of  the  road,  as 
carriers,  is  at  an  end.  They  have  performed  their  entire 
contract.  They  have  received  and  transported  the  goods  to 
their  destination,  and  the  consignee  not  being  present  to  re- 
ceive them,  they  have  been  stored  in  safety,  whence  the  con- 

1 16  Mich.,  79. 
2  Id.,  108. 


326  KOTICE   BY   WHICH   LIABILITIES   EXTINGUISHED. 

signee  may  take  them  in  a  reasonable  time.^  The  same 
doctrme  is  declared  in  a  later  case  by  the  same  com-t,  where 
it  is  said  that  the  carrier's  responsibihty  ends  when  the 
goods  are  taken  from  the  car  and  placed  on  the  platform ; 
that  if,  on  account  of  the  unseasonable  hour  of  their  arri- 
val, or  for  other  cause,  the  owner  is  not  present  to  receive 
them,  they  are  stored  in  the  railroad  company's  warehouse, 
the  liability  assumed  is  that  of  warehousemen,  and  they 
will  only  be  held  responsible  for  injury  or  loss  through  the 
negligence  of  the  depositaries.  The  doctrine  that,  in  order  to 
exonerate  themselves  from  their  liability  as  carriers,  railroad 
corporations  were  required  to  give  notice  of  the  arrival  of 
goods,  was  expressly  denied.- 

§  567.  Modification  of  the  Rule  in  Massaclinsetts. — 
The  doctrine  of  the  case  last  cited,  as  to  the  termination  of 
the  carrier's  liabihty,  is  somewhat  modified  by  later  cases 
decided  in  the  same  state,  wherein  it  is  held  that  the  duty 
of  the  common  carrier  by  rail,  with  reference  to  the  goods 
transported,  includes  unloading  them  w^ith  care,  and  if  not 
deUvered  at  once,  storing  them  in  a  suitable  and  safe  place 
for  future  delivery ;  but  notice  of  arrival  is  not  held  requi- 
site, nor  is  the  liability  of  the  raiboad  company  for  loss  or 
damage  occurring  otherwise  than  by  the  negUgence  of  its 
servants,  at  any  time  after  such  storage,  admitted  in  either 
case.* 

» Thomas  v.  Boston  &  Providence  R.  R.  Co.,  10  Mete,  473;  Lamb  v. 
Western  R.  R.  Co.,  7  AUen,  98.  See,  also,  Porter  v.  Cliicago  &  R.  I.  R. 
R.,  20  111.,  407;  Richards  v.  M.  S.  &  North  Ind.  R.  R.,  id.,  404;  Chicago 
&  Alton  R.  R.  Co.  v.  Scott,  43  111.,  133;  Merchants'  Disp.  Tr.  Co.  v.  Hal- 
lock,  64  111.,  284;  Mohr  v.  The  C.  &  N.  W.  R.  R.  Co.,  40  la.,  579;  Roths- 
childs V.  M.  C.  R.  R.  Co.,  69  lU.,  164;  Barron  v.  Eldiedge,  100  Mass., 
455 ;  Stowe  v.  Raihoad,  113  Mass.,  531 ;  McCarthy  v.  Raih-oad,  30  Pa.  St., 
247;  Shenck  v.  Propeller  Co.,  60  Pa.  St.,  109;  Chicago,  etc.,  R.  Co.  v. 
McCool,  26  Ind.,  140;  Southwestern  R.  R.  v.  Felder,  46  Ga.,  433;  Mobile, 
etc.,  R.  R.  V.  Prewitt,  46  Ala.,  63;  Neal  v.  Railroad,  8  Jones  (Law),  482. 

2 Norway  Plains  Co.  v.  Boston  &  Me.  R.  R.,  1  Gray,  263. 

3 Sessions.  Western  Railroad  Corp.,  16  Gray,  133;  Rice  v,  Boston  & 
Worcester  Raih-oad  Corp.,  98  Mass.,  212. 


LIMITING   LIABILITY   OF   CAKKIEES.  327 

§  568.  New  Jersey,  Vermont  —  Reasonable  Time  to  Re- 
move.— In  Morris  &  Essex  Kailroad  Co.  v.  Ayres,^  the  dis- 
tinction made  between  the  rule  governing  carriers  by  wagon, 
carriers  by  water,  and  carriers  by  rail,  is  that  the  first  is  re- 
quired to  make  personal  delivery  at  the  consignee's  place  of 
business ;  the  second,  from  the  fact  that  such  personal  de- 
livery would  be  impracticable  for  them,  are  bound  to  give 
notice  of  the  arrival  of  tlie  vessel  containing  the  ffoods; 
while  the  third,  although  incapable  of  delivering  the  goods 
to  the  consignee  at  his  own  door  or  place  of  business,  is  not 
required  to  give  such  notice,  because  of  the  regularity  of 
the  arrival  of  the  trains.  Their  duty  as  carriers,  however, 
is  said  to  cease  \vith  then*  having  the  goods  safely  housed 
and  ready  for  delivery,  allowing  a  reasonaUe  time  for  the 
owner  or  consignee  to  remove  them.  The  same  doctrine  as  to 
carriers  by  rail  is  perhaps  more  clearly  and  comprehensively 
stated  by  Judge  Kellogg,  in  Blumenthal  v.  Brainard,-  where 
it  is  said  that  their  responsibility  as  carriers  "continues 
after  their  arrival  at  the  place  of  destination,  until  they  are 
ready  to  be  delivered  at  the  usual  place  of  delivery,  and  the 
owner  or  consignee  has  had  a  reasonable  opportunity,  dm'- 
ing  the  hours  when  such  goods  are  usually  delivered  there, 
of  examining  them,  so  far  as  to  judge  from  their  outward  ap- 
pearance of  their  identity,  and  whether  they  are  in  a  proper 
condition,  and  to  take  them  away ;  and  that  it  is  the  duty 
of  the  owner  or  consignee,  under  the  contract  of  carriage, 
to  take  notice  of  the  course  of  business  at  the  station  of 
delivery,  and  of  the  time  of  the  arrival  of  the  train,  when 
his  goods  may  be  expected  at  the  place  of  destination,  and 
to  be  ready  to  receive  them  in  a  reasonable  time  after  their 
arrival,  and  when  in  the  common  course  of  business  they 
may  fairly  be  expected  to  be  ready  for  delivery."  ' 


1 29  N.  J.  (Law),  393. 

2  38  Vt.,  402-13. 

3  See,  also,  Chicago,  etc.,  R.  Co.  v.  Bensley,  69  111.,  630;  Alabama, 
etc.,  R.  Co.  V.  Kidd,  35  Ala.,  209. 


328  NOTICE   BY   WHICH   LIABILITIES   EXTINGUISHED. 

§  569.  Additional  Authorities. —  Other  cases  cited  in 
support  of  the  foregoing  doctrine  do  not  necessarily  involve 
the  question  of  notice,  but  favor  holding  the  carrier  to  the 
full  extent  of  his  liabihty  as  such,  not  only  until  the  goods 
have  reached  their  destination,  and  are  ready  for  dehvery, 
but  until  the  owner  or  consignee  has  had  a  reasona'ble  oppm^- 
tiuiity  to  take  thein  away}  In  neither  of  the  cases  cited  was 
the  question  of  notice  necessary  to  be  determined.  In  both 
instances  the  goods  were  unladed  at  so  late  an  hour  in  the 
day  that  it  would  have  been  impossible  to  remove  them,  and, 
before  the  warehouse  where  they  were  stored  was  opened 
for  their  dehvery,  the  goods  were  lost.^ 

§  570.  New  York,  Michigan,  Texas,  New  Hampshire 
and  otlier  States  —  Notice  Required. —  In  the  state  of  ISTew 
York,  the  rule  may  be  regarded  as  settled  in  perfect  har- 
mony with  the  views  of  Judge  Cooley  in  McMillan  r>.  Mich. 
South.  &  ISTorth.  Ind.  R.  R.  Co.^  In  the  case  of  McDonald 
-y.  The  Western  Railroad  Corp.,*  it  is  laid  down  that  notice 
to  the  owner  or  consignee  of  the  arrival  of  the  goods,  and 
a  reasonable  time  and  opportunity  to  remove  them  after 
such  notice,  wiU  come  in  lieu  of  the  personal  delivery  re- 
quired of  carriers  by  wagon,  in  order  to  change  the  character 
of  the  habihty  from  that  of  carrier  to  the  less  onerous  re- 
sponsibility of  warehouseman.  This  doctrine  is  accepted  in 
other  states.^ 


1  Moses  V.  Boston  &  Me.  R.  R.  Co.,  32  N.  H.,  533;  Wood  v.  Crocker,  18 
Wis.,  345;  The  Eddy,  5  WaU.,  481;  Goodwin  v.  Raili-oad,  58  Bai-b.,  195. 

2  Redf.  on  Railways,  §  183,  ^  9. 
3 16  Mch.,  79,  cited  ante,  §  565. 

4  34N.  Y.,  497. 

5  Smith  V.  Nashua  &  L.  R.  R.,  27  N.  H.,  86 ;  Morgan  v.  Dibble,  39  Tex., 
107.  See,  also,  Blumenthal  v.  Brainard,  38  Vt. ,  402 ;  Ouimit  v.  Hen- 
shaw,  35  Vt.,  604;  Wood  v.  Crocker,  18  Wis.,  345;  Leuike  v.  Railroad, 
39  Wis.,  449;  Maignan  v.  Raihoad,  24  La.  An.,  333;  Jeffersonville,  etc., 
R.  Co.  V.  Cleveland,  2  Bush,  468;  Hksch  v.  Quaker  City,  2  Disney  (O.), 
144;  Morris,  etc.,  R.  ads.  Ayres,  29  N.  J.  L.,  393;  Leavenworth,  etc.,  R. 
V.  Maris,  16  Kans.,  333. 


LIMITING   LIABILITY   OF   CAERIEES^  329 

§571.  Carriers  by  Water  —  Notice  Recjuired. —  When 
the  carriage  is  by  water,  the  rule  seems  more  uniform,  ex- 
cept as  modified  or  affected  by  local  custom.  The  doctrine 
that  notice  to  the  consignee  is  necessary  to  exonerate  the 
carrier,  whose  duty,  so  far  as  actual  transportation  is  con- 
cerned, is  limited  to  carrying  the  property  from  port  to 
port,  is  quite  generally  recognized  in  this  country;  in  fact, 
may  be  said  to  be  the  acknowledged  rule  in  all  the  states, 
unless  the  principles  laid  down  in  the  Massachusetts  cases 
cited  may  be  regarded  as  in  conflict.  • 

§  572.  Comparison  of  Conflicting  Tiews. —  The  rule 
adopted  in  some  of  the  states,  holding  the  carrier  by  rail  to 
the  full  measure  of  accountability  as  carrier,  until  a  reason- 
able time  has  elapsed  for  removal,  is  certainl}'-  founded  upon 
better  reasons  and  supported  by  higher  authorit}"  than  the 
doctrine  by  which  the  goods  are  held  at  the  risk  of  the  con- 
signee, barring  the  carrier's  gross  negligence,  from  the  mo- 
ment they  are  removed  from  the  cars.  The  latter  doctrine 
proceeds  upon  the  anomalous  theory  that  the  carrier,  upon 
receiving  the  goods,  enters  into  an  undertaking,  not  only  to 
transport  them  as  a  common  carrier,  but,  when  they  have 
reached  their  destination,  to  store  and  hold  them  as  a  ware- 
houseman. The  opposite  doctrine  recognizes  the  possible 
impracticability  of  removing  the  goods  immediately  upon 
their  arrival,  and  continues  the  carrier's  accountability  until 
the  consignee  or  owner  may  have  an  opportunity,  in  the 
usual  course  of  business,  to  take  them  into  his  owti  posses- 
sion. But  both  doctrines,  as  regards  the  question  of  notice, 
are  founded  upon  an  assumed  regularity  and  punctuality  in 
the  arrival  of  freight  trains,  and  the  supposition  that  the 
owner  or  consignee  of  chattels  shipped  as  freight  have  re- 
ceived antecedent  information  that  the  property  would 
arrive  by  a  particular  train.     Were  this  uniformly  true, 

I  Price  V.  Powell,  3  N.  Y.,  333;  Fiske  v.  Ne^vton,  1  Den.,  45;  The  Mary 
Wasliington,  Chase.  Dec.  125;  Smith  v.  Nashua  R.  R.  Co.,  27  N.  H., 
86 ;  Rome  R.  R.  v.  SuUvan,  14  Ga.,  277;  Houston  &  Tex.  Cent.  R'y  Co. 
V.  Hodde,  43  Tex.,  467;  Union  Steamboat  Co.  v.  Knapp,  73  111.,  506. 


330  NOTICE   BY   WHICH   LIABILITIES   EXTINGUISHED. 

there  could  be  little  difficulty  in  reconciling  some  of  the 
decisions  which  seem  so  conflicting.  But  where  large  quan- 
tities of  freight  are  delivered  to  the  carrier,  and  he  is  unable 
to  forward  the  same  promptly,  in  order  to  enable  the  con- 
signee to  anticipate,  with  any  degree  of  certainty,  the 
arrival  of  goods  shipped  as  freight,  the  consignor,  or  some 
one  acting  at  the  place  of  shipment,  would  be  compelled  to 
take  notice  of  the  actual  loading  of  the  property  and  the 
departure  of  the  train.  This  is  a  dut}^  which,  we  have  seen, 
is  not  incumbent  upon  shippei's.*  The  goods  are  in  the  pos- 
session of  the  carrier,  and  his  liability  as  such  commences 
from  the  time  they  are  delivered  to  him  for  present  for- 
warding, whether  the  actual  transit  commences  at  once  or 
on  a  subsequent  day.  The  consignor,  therefore,  cannot 
ordinarily  advise  the  consignee  with  certainty  that  the 
goods  were  placed  upon  a  certain  train,  which  departed  on 
a  certain  day  and  would  arrive  on  a  certain  day.  Any  such 
information  from  him,  unless  he  goes  out  of  his  way  to  ob- 
tain it,  must  be  a  matter  of  guess  work.  If,  as  is  usual,  the 
duty  of  forwarding  the  goods  is  intrusted  to  the  carrier,  any 
advice  as  to  their  arrival  would  properly  come  from  him. 
Should  the  carrier  so  advise  the  owner  or  consignee,  the 
latter  would  have  notice,  and  there  would  no  longer  be 
room  for  controversy.^ 

§  573.  Rule  BeQ[iiiriiig  Notice,  Preferred. — For  the 
reason,  therefore,  as  so  well  expressed  by  Judge  Cooley  in 
the  case  heretofore  cited,*  that  •'  the  man  who  sends  his 
goods  by  railroad,  and  who  desires  to  receive  them  as  soon 
as  they  reach  their  destination,  has  commonly  no  design  to 
employ  the  railroad  company  in  any  other  capacit}^  than 
that  of  carrier,"  and  for  the  further  reason  that  the  duty  of 
giving  notice  of  arrival  would  be  light  compared  to  that  of 
keeping  constant  watch  upon  the  movements  of  freight 

1  Ante,  §  433  et  seq. 

2  Opinion  of  Judge  Breese,  in  CMcago  &  Alton  R.  R.  Co.  v.  Scott,  43 

ni.,  138. 

3 16  Mich.,  105. 


LIMITING    LIABILITY   OF   CAEEIEES.  331 

trains;  and  because  the  knowledge  of  this  simple  duty  is 
much  more  easily  communicated  to  a  few  common  carriers, 
so  that  they  may  regulate  their  business  accordingly,  than 
it  would  be  to  bring  home  to  every  one  to  whom  property 
might  be  transported  by  rail,  knowledge  of  the  opposite 
regulation;  and  on  account  of  the  impolicy  of  removing 
the  incentives  to  diligence  and  care  in  selecting  officers 
and  servants  of  prudence  and  integrity  by  corporations 
controlling  large  quantities  of  the  property  of  individuals 
intrusted  to  them,  as  well  as  on  account  of  the  analogy 
between  carriage  by  rail  and  by  water,  the  better  doctrine 
is  that  which  continues  the  carrier's  liability  as  special  in- 
surer until  due  notice  or  knowledge  of  the  arrival  of  the 
goods  is  brought  home  to  the  owner  or  consignee,  and  a 
reasonable  time  thereafter,  during  business  hours,  within 
which  to  remove  them.^ 

§  574.  Conflict  Explained  by  DifTerence  in  Local  Cus- 
toms.—  The  only  ground  upon  which  the  conflicting  decis- 
ions of  different  courts,  upon  this  question,  can  be  recon- 
ciled in  order  to  render  them  consistent  with  the  same 
method  of  reasoning,  is  by  taking  into  account  the  different 
circumstances  and  the  different  customs  of  those  communi- 
ties whose  courts  rule  adversely  to  each  other.^  The  courts 
of  any  particular  state  may  have  settled  the  law  in  a  man- 
ner suitable  to  their  own  condition,  and  in  view  of  the  pe- 
culiarities surrounding  their  local  railroad  traffic,  while  in 

1  Green  &  C.  Navigation  Co.  v.  Marshall,  48  Ind.,  596;  Houston  & 
Texas  Cent.  R'y  Co.  v.  Hodde,  43  Tex.,  467;  Rawson  v.  Holland,  47 
How.  (N.  Y.)  Pr.,  292;  Erskine  v.  Steamboat  Thames,  6  Mo.,  371;  The 
Tybee,  1  Woods,  358 ;  Fenner  v.  Buffalo  &  State  Line  R.  R.  Co.,  44  N.  Y., 
505;  The  Mary  Washington,  Chase,  Dec.,  125;  Price  v.  Powell,  3  N.  Y., 
322;  The  Paytona,  2  Curtis,  21. 

2 Smith  V.  Nashua  RaUroad,  27  N.  H.,  86 ;  Gibson  v.  Culver,  17  Wend., 
305;  Ostrander  v.  Brown,  15  Johns.,  39;  Cliicago  &  Rock  Island  R.  R. 
Co.  V.  Warren,  16  lU.,  502;  Rome  R.  R.  v.  Sulivan,  14  Ga.,  277;  Hill  v. 
.Humphi-eys,  5  Watts  &  Serg.,  123;  IMich.  Cent.  R.  R.  Co.  v.  Wai-d,  3 
Mich.,  538;  Kohn  v.  Packard,  3  La.,  224;  Quiggm  v.  Duff,  1  M.  &  W., 
174;  Angell  on  Carriers,  §  313;  Hyde  v.  Navigation  Co.,  5  T.  R.,  389. 


332  NOTICE   BY   WHICH   LIABILITIES   EXTINGUISHED. 

another  state  an  opposite  conclusion  may  be  reached  for  the 
reason  that  this  method  of  transporting  goods  is  more  or 
less  certain  and  regular  as  there  carried  on. 

§  575.  Rule  Affected  by  Custom. — A  local  custom  of  the 
place  of  delivery,  of  which  the  consignee  or  owner  has  no- 
tice, may  very  materially  modify  or  enlarge  his  rights  with 
respect  to  notice  of  the  arrival  of  goods,  whether  carried 
by  water,  rail,  or  by  wagon.^ 

§  576.  Waiver  aud  Excuse. — The  duty  of  giving  such 
notice  is  not  so  imperative  that  it  may  not  be  waived  by 
contract,  or  even  by  the  conduct  of  the  owner  or  consignee. 
And  like  every  other  kind  of  notice,  the  party  required  to 
give  it  may  be  excused  from  doing  so.  Thus,  where  the 
consignee  of  the  goods  had  within  sixteen  days  prior  to  their 
arrival  taken  up  her  abode  about  four  miles  distant  from 
the  place  of  destination,  prior  to  which  time  she  had  resided 
in  another  state,  and  no  notice  was  given  to  the  railroad 
company  or  any  of  its  officers  of  her  place  of  residence, 
which,  upon  reasonable  inquiry,  they  were  unable  to  ascer- 
tain, the  property  being  destroyed  by  fire  while  in  the  com- 
pany's warehouse  after  a  reasonable  time  for  its  removal,  it 
was  held  that  the  company  was  only  liable  as  warehousemen, 
and  the  loss  being  through  no  fault  of  theirs  they  were  dis- 
charged from  all  responsibility. ^  So  the  carrier  has  been  ex- 
cused from  giving  notice  to  such  consignee  when  he  resided 
at  a  considerable  distance  from  the  place  of  destination,  and 
no  one  was  present  when  the  goods  arrived  to  receive  them 
or  take  notice  of  their  arrival.*  So,  also,  where  usages  and 
customs  of  the  community  where  the  goods  are  received  is 
not  to  give  notice  of  the  arrival  of  goods,  and  the  consignee 

iTheTybee,  1  Woods,  358;  The  Richmond,  1  Biss.,  49;  Farmers'  & 
Mechs.  Bank  V.  Chamijlain  Trans.  Co.,  16  Vt.,  52;  Huston  v.  Peters,  1 
Met.  (Ky.).  558. 

spelton  V.  Rensselaer  &  Saratoga  R.  R.  Co.,  54  N.  Y.,  214;  The  Mary 
Washington,  Chase,  Dec,  125. 

3  Northrop  v.  Syi-acuse,  B.  &  N.  Y.  R.  R.  Co.,  3  Abb.  App.  Dec.  (N.  Y.), 
386;  Fenner  v.  Buffalo  &  State  Line  R.  R.  Co.,  44  N.  Y.,  505. 


LIMITING    LIABILITY    OF   CAERIEKS.  333 

Lad  sufficient  notice  of  the  custom,  it  may  be  regarded  un- 
necessary,^ 
§  577.  Reasonal)le  Time  for  Removal. —  What  has  been 

said  with  reference  to  "  reasonable  time  "  suggests  the  ques- 
tion :  What  time  would  be  considered  reasonable,  in  order 
to  allow  of  the  removal  of  property  from  the  possession  of 
the  carrier  at  the  place  of  delivery  ?  This  is  a  question  of 
fact  which  can  receive  no  definite  answer  here,  because 
there  is  no  rule  of  law  governing  it  more  certain  than  that 
it  will  depend  upon  the  circumstances  and  the  business  cus- 
toms of  the  place  of  delivery.  But  it  is  not  to  be  understood" 
that  the  time  allowed  to  a  consignee  or  owner,  after  notice, 
to  claim  the  goods  may  be  materially  enlarged  or  extended 
by  circumstances  aifecting  him  in  a  manner  peculiar  and 
distinct  from  that  in  which  other  residents  of  the  place  are 
affected,  Neither  the  special  emergencies  of  his  own  pri- 
vate business,  nor  any  misfortune  which  might  befall  him 
in  particular  by  which  he  would  be  prevented  from  respond- 
ing to  the  notice  as  promptly  as  might  be  reasonably  ex- 
pected from  other  residents  of  the  vicinity,  could  be  urged 
as  an  excuse  for  his  delay  so  as  to  affect  the  question  of  the 
reasonableness  of  the  time  of  notice.'-^  Nor  could  the  dis- 
tance of  his  residence  or  place  of  business  from  the  station, 
dock  or  wharf  where  freight  is  discharged  make  any  ma- 
terial difference  in  this  respect.  The  time  in  general  re- 
garded as  reasonable  would  be  such  as  might  in  reason  and 
justice  be  deemed  sufficient  for  any  resident  of  the  \icinity 
to  come  for  the  goods  with  the  usual  appliances  for  cartage 
or  drayage  to  be  had  under  ordinary  circumstances.^  To 
enter  into  a  nice  computation  of  the  exact  distance  between 
the  owner's   or  consignee's  residence   and   the  station  or 

1  Gibson  u  Culver,  17  Wend.,  305;  Ostrandcr  r.  Brown,  15  Johns.,  89; 
Loveland  V.  Burk,  120  Mass,,  139;  Van  Santvoord  v.  St.  John,  6  Hill, 
157;  Farmers',  etc.,  Bank  v.  Champlain  Trans.  Co.,  16  Vt.,  52;  Dixon  v. 
Dunham,  14  111.,  324;  Shade  v.  Payne,  14  La.  An.,  453. 

2  Moses  V.  B.  &  M.  R.  R.,  32  N.  H.,  532,  541. 

3  Hedges  v.  The  Railroad,  49  N.  Y.,  223. 


334:  NOTICE   BY   WHICH    LIABILITIES    EXTINGUISHED. 

■wharf  where  the  goods  are  to  be  delivered,  in  every  instance, 
and  to  inquire  narrowly  into  the  time  required  to  travel 
over  such  distance,  could  result  in  nothing  but  confusion. 
The  vague  generality  of  the  rule  can  only  be  reduced  to  cer- 
tainty and  uniformity  by  a  hne  of  decisions  such  as  have 
sufficed  under  the  law  merchant  to  settle  definitely  the 
period  within  which  notice  of  the  dishonor  of  commercial 
paper  must  be  given.^ 

§  577a.  Actual  Notice  — Opportunity  to  Remove  Goods. 
It  is  difficult  to  separate  the  question  of  notice  from  that  of 
the  opportunity  to  remove  the  goods.  The  reason  the  con- 
signee is  entitled  to  notice  is  that  he  may  have  this  oppor- 
tunity. If  he  acquires  a  knowledge  of  the  fact  by  other 
means  than  a  personal  notice,  he  will  not  be  heard  to  com- 
plain that  he  was  not  notified.  The  notice  being  a  substan- 
tial rather  than  a  technical  right,  it  should  be  actual,  if  not 
express.  The  publication  of  the  arrival  of  the  goods  would 
not  take  the  place  of  notice,  unless  the  published  notice  were 
read  by  the  consignee.-  So  where  the  notice  is  sent  through 
the  postoffice,  the  carrier  takes  the  risk  of  its  being  dehv- 
ered.*  The  opportunity  to  remove  the  goods  after  notice 
embraces  other  considerations  than  that  of  time,  though  this 
is  of  importance,  as  we  have  seen.*  The  carrier's  liability 
does  not  cease  until  the  goods  have  been  placed  in  a  position 
to  be  handled  by  the  consignee  without  uiu^easonable  incon- 
venience.^ The  notice  should  be  so  tuned  as  to  give  the  con- 
signee an  opportunity  to  remove  the  goods  on  a  regular 
business  day.^ 

1  See  post,  ch.  X,  pt.  III. 

2McKeon  v.  See,  4  Eob.  (N.  Y.),  449;  Kohn  v.  Packard,  3  La.,  225. 

3  Solomon  v.  S.  B.  Co.,  2  Daly  (N.  Y.),  104. 

*  Supra,  %%5U,  577. 

5 The  Eddy,  5  WaU,  481;  The  Ben  Adams,  2  Ben.,  445. 

•Russell  Mfg.  Ck).  v.  Steamboat  Co..  50  N.  Y..  121. 


LAJ!JDLOKD   AND    TENA2JT.  335 


III.  Landlord  and  Tenant. 

§  578.  Notice  to  Quit  —  Reciprocal  Right. 

579.  Division  of  Subject. 

580.  Statutory  Provisions. 

581.  Nature  of  Tenancy  Requiring  Notice. 

582.  From  Year  to  Year. 

583.  Growing  Out  of  Possession  Under  Contract. 

584.  Occupancy  with  Owner's  Consent. 

585.  Holding  Over  Term. 

586.  Lease  Void  Under  Statute  of  Frauds. 

587.  Implied  Agreement  Sufla.cient. 

588.  Wlien  Payment  of  Rent  Not  Essential. 

589.  Possession  by  Mortgagor  After  Forfeiture. 

590.  General  Tenancy  at  Will. 

591.  Termination  of  Strict  Tenancy  at  Will. 

592.  Mere  Occupant  Not  Entitled  to  Notice. 

593.  Contract  to  Purchase  After  Original  Trespass  WiU  Not  Entitle  to 

Notice. 

594.  Ti-espasser  Negotiating  for  Lease  Not  Entitled  to  Notice. 

595.  Bailiff  or  Servant  of  Owner  Not  Entitled  to  Notice. 

596.  Tenancy  Not  Created  by  Holding  Over  Term. 

597.  Tenant  for  Life  of  Another  Not  Entitled  to  Notice. 

598.  Contesting  Landlord's  Title  Not  Entitled  to  Notice. 

599.  Grantee  of  Mortgagor  Not  Entitled  to  Notice. 

600.  Tenancy  at  Will  or  by  Sufferance. 

601.  Payment  of  Rent  Without  Tenancy. 

602.  Owner  of  Premises  May  Elect. 

603.  Holding  Over  Under  Agreement  for  New  Lease. 

604.  Proof  of  Tenancy  from  Year  to  Year. 

605.  Burthens  and  Benefits  Equally  Divided. 

606.  Increase  of  Rate. 

607.  Time  of  Notice. 

608.  Time  Regulated  by  Statute. 

609.  Notice  Must  Expire  at  Commencement  of  New  Term. 

610.  Tenancy  by  the  Quarter. 

611.  Tenant  from  Month  to  Month. 

612.  Princii^al  and  Accessorial  Subject  of  Demise. 

613.  The  Different  Bands  of  Uncertain  Tenancies. 

614.  Circumstances  by  Which  it  May  be  Determmed. 

615.  By  Whom  Notice  Given. 

616.  Joint  Lessees  or  Lessors. 

617.  Partners. 

618.  One  Giving  Notice  as  Agent  of  Co-tenant. 

619.  Agent  Must  Have  Authority  at  the  Time. 


336  NOTICE   BY    WHICH   LIABILITIES   EXTINGUISHED. 

§  620.  Agency  Must  Extend  to  the  Duty  Undertaken. 

621.  Wlaen  Authority  Inferred. 

622.  Notice  by  Corporation. 

623.  By  Receiver. 
634.  When  by  Tenant. 

625.  Wlien  by  Landlord 

626.  To  ^Vhom  Given. 

627.  Joint  Tenants  —  Tenants  in  Common  —  Partners. 

628.  Notice  to  Corporation. 

629.  Form  and  Sufficiency. 

630.  Address  of  Written  Notice. 

631.  What  Notice  to  Contain. 

633.  Statement  of  Cause  Eequired. 

633.  Time  Mentioned  in  General  Terms. 

634.  Tenant  from  Week  to  Week. 

635.  Must  Not  Demand  Possession  "  Forthwith." 

636.  Undue  Strictness  Not  Requhed. 

637.  Description. 

638.  Substantial  Accuracy  Alone  Required. 

639.  lUusti-ation  of  Sufficient  Cei-tainty. 

640.  Service  of  Notice. 

641.  May  be  Waived. 

642.  Voluntary  SiuTender. 

643.  Parol  Surrender  and  Acceptance. 

644.  Offering  to  Let  Not  Waiver. 

645.  Parol  Surrender  Must  Go  Into  Immediate  Effect. 

646.  Verbal  License  to  Surrender  Tenancy  from  Year*  to  Year  Inop- 

erative. 

647.  Defects  in  Notice  May  be  Waived. 

648.  Waiver  of  Rights  Under  Notice. 

649.  WiU  Not  be  Presumed  from  Acceptance  of  Rent  by  Unauthorized 

Person. 

650.  Mere  Permission  to  Remain  After  Notice  No  Waiver. 

§  578.  Notice  to  Quit  —  Reciprocal  Eight. —  One  of  the 

most  familiar  modes  by  which  the  relation  of  landlord  and 
tenant  may  be  severed  is  by  a  notice,  from  one  to  the  other, 
of  an  intention  to  terminate  the  tenancy.  This  is  what  is 
known  as  a  notice  to  quit;  and  where  the  circumstances  and 
relations  of  the  parties  render  such  notice  necessary,  it  be- 
comes a  reciprocal  right,  or  the  correlative  duty  of  either 
party,  as  he  may  desire  to  perpetuate  the  relation,  or  seek  to 
terminate  it.     Neither  the  landlord  nor  the  tenant  can  be 


LANDLOED    AND    TENANT.  337 

summaril}^  deprived  of  his  rights  under  the  tenancy  without 
due  notice.^ 

§579.  Division  of  Subject. —  The  order  in  which  the 
several  branches  of  the  subject  will  be  here  presented  is  as 
follows:  1.  "What  cases  of  tenancy  render  such  notice  nec- 
essary in  order  to  terminate  them,  tind  what  kinds  of  ten- 
ancy may  be  terminated  without  notice.  2.  The  time  of 
giWng  notice  to  quit.  3.  By  wdiom  given.  4.  To  whom 
given.  5.  Its  form  and  sufficiency.  6.  The  manner  and 
mode  of  service.     T.  Waiver  and  excuse. 

§  580.  Statutory  Provisions. —  The  character  of  the  ten- 
ancy entitling  either  the  landlord  or  the  tenant  to  insist 
upon  the  ^continuance  of  the  relation,  until  terminated  by 
notice  from  the  other  party,  is,  to  a  very  great  extent, 
affected  by  local  legislation.  It  is  not  intended  here  to  fol- 
low closely  the  capricious  changes  and  modifications  of  the 
common  law,  for  the  purpose  of  shovring  with  particularity 
the  kinds  of  tenancy  requiring  notice  in  each  state.  It  will 
be  sufficient  to  point  out  the  common  law  rule,  and  its  appli- 
cation to  particular  cases,  and  to  set  out  the  principles  of  a 
general  nature  applicable  alike  to  tenancies  at  common  law 
and  under  local  statutes. 

§  581 .  Nature  of  Tenancy  Requirini*  Notice. —  The  cases 
in  which  notice  is  required  can  be  included  in  no  general 
description  better  than  what  would  be  understood  by  ten- 
ancies of  iincertain  duration.  The  most  common  example 
being  a  tenancy  from  year  to  year,  to  be  renewed  or  termi- 
nated at  the  option  of  either  party,  with  the  end  of  any  year. 
The  reason  given  for  the  rule  requiring  notice  in  order  to 
terminate  such  a  tenancy  is,  tliat  it  would  be  contrary  to  the 
contract  to  turn  the  tenant  out  in  the  middle  of  the  year, 
and  so,  if  he  be  allowed  to  hold  over,  it  may  fairly  be  in- 
ferred, from  the  landlord's  acquiescence,  that  he  intends  to 
contmue  the  lease  for  another  year.^ 

iHaU  V.  Wadsworth,  28  Vt.,  410;  Barlow  v.  Wainrlght,  23  Vt.,  88. 
2  Logan  V.  Herron,  8  Serg.  &  R,  459;  Bedford  v.  IMcElheiron,  2  id., 
49;  Doe  v.  Stennett,  2  Esp.,  716:  Moshier  v.  Reding,  12  Me.,  478;  Den  v. 
22 


338  KOTICE    BY    WHICH    LIABILITIES   EXTINGUISHED. 

§582.  From  Year  to  Tear. —  And  so,  where  premises 
were  leased  for  the  term  of  one  year,  and  an  indefinite 
period  thereafter,  at  a  fixed  annual  rent,  and  under  this  lease 
the  tenant  entered  and  occupied,  this  was  a  tenancy  from 
3^ear  to  year ;  and  the  tenant  dying,  his  interest  in  the  realty 
passed  as  a  chattel  to  his  personal  representatives,  who 
thereby  became  tenants  from  year  to  year,  and  hable,  as 
such,  to  the  payment  of  the  yearly  rent  until  they  dis- 
charged themselves  from  the  obligation  by  giving  notice  of 
their  intention  to  terminate  such  tenancy.^ 

§  583.  Growing  Out  of  Possession  Under  Contract. — 
So,  also,  where  one  comes  into  possession  under  a  contract 
for  a  leas  3,  or  a  contract  to  purchase,  and  there  is  subse- 
quent paj^nent  of  rent,  this  "will  be  held  sufiicient  to  create 
a  tenancy  from  year  to  year,  which  can  onh'-  be  terminated 
by  notice.-  And  in  one  case,  w^here  the  party  entering  un- 
der such  a  contract  of  purchase  had  not  paid  rent,  he  was 
held  to  be  a  tenant  from  year  to  year,  and  entitled  to  notice 
to  quit  before  he  could  be  ejected.^  There,  however,  the 
situation  of  the  parties  with  reference  to  the  pro])erty  was 
exceptional.  The  covenantor,  who  forcibly  dispossessed  the 
covenantee  for  non-payment  of  the  purchase  money,  was 
unable  to  show  title  in  himself,  but  claimed  that  the  pur- 
chaser was  estopped  from  denying  his  ownership  upon  the 
famiUar  ground  that  the  tenant  would  not  be  heard  to  dis- 
pute his  landlord's  title.^  After  thus  assuming  the  position 
of  landlord  for  his  own  advantage,  he  could  not  be  heard 
to  deny  the  relation  between  himself  and  tenant,  for  the 

Adams,  12  N.  J.  (Law),  99;  Doe  v.  Watts,  7  D.  «&  E.,  83;  Cobb  v.  Stokes, 
8  East,  358;  Grant  v.  White,  42  Mo.,  285;  4  Kent's  Com.,  111-114. 

1  Pugsley  V.  Aiken,  11  N.  Y.,  494. 

2  And  so  held  -where  the  payment  of  rent  was  by  the  month,  but  the 
former  tenancy  was  by  the  year,  though  the  administrator,  whose  con- 
trol ceased  at  the  end  of  the  year,  promised  that  thereafter  the  tenancy 
should  be  from  month  to  month.  The  contract  extended  beyond  the 
duration  of  his  authority.     Burbank  v.  Dyer,  54  Ind,,  239. 

sMoshier  v.  Reding,  12  Me.,  478, 

i  See  Taylor  on  Landlord  and  Tenant,  §  629. 


LAXDLOED   AIST)   TENANT.  339 

reason  that  the  latter  entered  under  a  contract  of  purchase, 
instead  of  a  lease. 

§  584.  Occupancy  witli  Owner's  Consent. — There  seems 
no  doubt  that  any  sort  of  occupanc}^  of  the  premises,  with 
the  consent  of  the  owner,  where  the  latter,  by  his  acts,  or 
even  by  silent  acquiescence,  recognizes  the  occupancy  as 
held  under  himself,  for  a  period  of  uncertain  duration,  ex- 
cept in  certain  cases  of  tenancy  at  will  or  by  sufferance,  to 
be  noticed  hereafter,  would  create  between  the  parties  the 
relation  of  landlord  and  tenant,  and  entitle  each  to  notice 
of  its  determination. 

§  585.  Holding  Over  Term. —  Where  the  tenancy  to  be 
terminated  by  notice  arises  by  the  tenant's  holding  over 
after  the  expiration  of  the  original  term,  there  is  the  same 
reason  for  the  rule  as  to  notice  to  quit,  whether  the  original 
term  be  for  one  year  or  a  shorter  period.  If  a  tenancy 
under  lease  for  one  year  be  convertible  into  a  tenancy  from 
year  to  year,  by  the  continuance  of  the  tenant's  occupancy 
after  the  expiration  of  his  term,  with  the  implied  consent  of 
the  landlord,  by  the  same  rule,  a  tenant  for  one  quarter,  or 
one  month,  will,  in  case  of  holding  over,  be  regarded,  for 
the  purposes  of  notice,  as  a  tenant  from  quarter  to  quarter, 
or  from  month  to  month,  as  the  case  may  be.^  But  this 
character  of  occupancy  is  generally  regulated  by  statute, 
according  to  the  nature  and  situation  of  the  property  held. 
"Where  the  property  is  used  only  for  agricultural  purposes, 
requiring  a  yearly  letting  in  order  to  render  it  available  for 
the  tenant's  use,  and  the  duration  of  such  tenancy  is  ren- 
dered uncertain  by  the  expiration  of  the  original  term  and 
the  continued  occupancy  of  the  premises,  the  subsequent 
holding  is  regarded  as  under  an  implied  agreement  run- 
ning from  year  to  year.  "Where,  however,  the  premises 
are  situated  in  a  city  or  village,  in  the  absence  of  such  a 
lease  as  the  statute  prescribes,  or  such  express  terms  as  may 

iBlumenburg  v.  Myres,  32  Cal.,  93,  96;  Wilkinson  v.  Hall,  3  Bing. 
(New  Cases),  508,  530. 


340  NOTICK  BY   WHICH   LIABILITIES   EXTINGUISHED. 

be  necessary  to  limit  the  duration  of  the  tenancy  to  a  spe- 
cific period,  it  is  treated  as  running  for  a  shorter  term,  in 
general  from  month  to  month.' 

§  580.  Lease  Yoid  Under  Statute  of  Frauds. —  A  tenant 
holding  under  a  lease  void  under  the  statute  of  frauds,  may, 
for  the  purposes  of  notice,  be  regarded  as  a  tenant  from 
year  to  year.  Thus,  where  a  parol  lease  of  land  was  made 
for  a  term  of  years,  at  a  stated  rent,  although  by  the  statute 
declared  to  be  a  tenancy  at  will,  its  terms  would  regulate 
the  rent  to  be  paid,  and  the  time  of  year  when  the  tenant 
is  to  quit  the  possession  of  the  premises,  and  before  the 
landlord  can  maintain  ejectment  or  other  proceeding  to 
regain  possession  he  will  be  required  to  ^ive  notice  to  quit.- 
§587.  Implied  Agreement  Sufficient. —  It  is  not  essen- 
tial, in  order  to  estabhsh  the  relation  of  landlord  and  ten- 
ant, so  as  to  require  notice  to  terminate  it,  that  possession 
of  the  premises  should  be  taken  under  a  positive  agreement 
of  any  sort.  A  subsequent  payment  of  rent  will  be  suffi- 
cient to  create  such  a  tenancy  as  to  property  occupied  by  a 
tenant  for  years  beyond  the  boundaries  of  the  land  included 
in  his  lease.^ 

§  5'88.  When  Payment  of  Rent  Not  Essential.—  But  the 
payment  of  rent,  in  the  absence  of  an  express  agreement, 
has  not  always  been  regarded  by  the  courts  as  essential  to 
the  creation  of  a  tenancy  from  year  to  year.  Thus,  where 
it  appeared  that  the  tenant  had  taken  possession  of  the 
premises  with  the  consent  of  the  owner,  who  died  during 
such  occupancy,  and  the  tenant,  while  in  possession,  made 
improvements,  but  paid  no  rent,  nor  was  any  reserved  by 

iSprague  v.  Quinn,  108  Mass.,  553;  Prindle  v.  Anderson,  19  Wend., 
391 ;  Coffin  v.  Lunt,  2  Pick.,  70;  Ellis  v.  Paige,  id.,  71,  note. 

2Tliurber  v.  Dwyer,  10  R.  I.,  355;  Barlow  v.  Waiuright,  22  Vt.,  88; 
Silsby  V.  Allen,  43  Vt.,  172 ;  Gleason  v.  Gleason,  8  Cush.,  32 ;  Doe  v.  Bell, 
5  T.  R,,  471;  Clayton  v.  Blakey,  8  T.  R.,  3;  Schuyler  v.  Leggett,  2  Cow., 
660.  And  so  where  the  tenancy  is  under  a  lease  void  as  being  made  by 
an  agent  in  his  own  name.     Murray  v.  Armstrong,  11  Mo.,  209. 

3  Jackson  v.  Wilsey,  9  Johns.,  267. 


LAKDLOED   AND   TENANT.  341 

the  landlord  in  his  life-time,  it  was  held  that  the  tenant 
could  not  be  summarily  dispossessed  without  notice.' 

§  589.  Possession  by  Mortgagor  After  Forfeiture.— So 
where  there  is  a  common  law  mortgage  of  the  premises, 
and  the  mortgagor  is  permitted  by  the  mortgagee  to  remain 
in  possession  without  any  express  agreement  as  to  the  term 
for  which  he  shall  occupy,  except  as  fixed  by  the  maturity 
of  the  obligation  thereb}'"  secured,  the  mortgagor  has  been 
regarded  by  high  authority  as  in  possession  under  such  an 
implied  agreement  as  to  entitle  him  to  be  considered  as  a 
general  tenant  at  will,  and,  as  such,  entitled  to  notice  to 
quit.^ 

§  590.  General  Tenancy  at  Will. —  The  relation  upon 
which  the  right  to  notice  depends  is  recognized  as  existing 
between  the  landlord  and  tenant,  where  there  is  a  general 
tenancy  at  will,  as  distinguished  from  a  strict  tenancy  at  will. 
The  former  species  is  that  which  grows  out  of  the  tenant's 
holding  over  after  the  expiration  of  the  original  term;' 
an  entry  with  the  consent  of  the  landlord  and  a  lease  ren- 
dered void  by  the  statute  of  frauds ;  *  the  occupancy  of  the 
premises  for  an  indefinite  period,  under  a  contract,  express 
or  implied,  to  pay  rent ;  ^  and  even  where  the  land  is  occu- 
pied and  improved  by  the  tenant  under  an  implied  agree- 
ment with  the  landlord,  from  year  to  year,  without  the 
special  reservation  of  rent.* 


1  Den  V.  Mackay,  3  N.  J.  (Law),  419;  Jackson  v.  Laugliliead,  2  Johns., 
75,  where  it  is  laid  down  generally  that  "  no  person  who  holds  land  by 
another's  consent,  for  an  indefinite  period,  ought  ever  to  be  evicted  by 
ejectment  at  the  suit  of  such  party,  without  previous  notice  to  quit." 
See,  also,  Jackson  v.  Bryan,  1  Johns.,  322;  Jackson  v.  Green,  4  Johns., 
186;  Jackson  v.  Niven,  10  Johns.,  335;  Bedford  v.  McElherron,  2  Serg. 
&  E.,  49. 

2  Jackson  V.  Hopkins,  18  Johns.,  487. 

3  Supra,  %  585. 
*S«i)ra,  §586. 
sSttpm,  §§588,  587. 
6  Supra,  §  588. 


34:2  NOTICE   BY   WHICH    LIABILITIES    EXTINGUISHED. 

§  591 .  Teriiiination  of  Strict  Tenancy  at  Will. — Where 
a  tenancy  at  will  is  terminated  by  notice  from  the  landlord, 
it  may  operate  as  the  inception  of  a  tenancy  of  a  different 
character.  Thus  where  a  tenant  strictly  at  will  received 
three  months'  notice  to  quit,  and  held  over  under  an  implied 
agreement  for  rent,  this  was  held  to  create  a  tenancy  from 
year  to  year,  commencing  with  the  date  of  the  notice,  and 
requiring  six  months'  notice  prior  to  the  end  of  the  first 
year  thereafter  to  entitle  the  landlord  to  maintain  an  action 
for  the  possession.^ 

§  592.  Mere  Occupant  Not  Entitled  to  Notice. —  Where 
the  relation  of  landlord  and  tenant  does  not  exist  between 
the  owner  of  the  fee  and  the  occupant  of  the  premises,  there 
is  no  necessity  for  notice  from  either  party.  This  relation 
being  one  arising  by  contract,  express  or  imphed,  cannot 
be  forced  upon  either  party  against  his  will.  So  where  one 
is  a  mere  trespasser  upon  the  land  of  another,  he  is  not 
entitled  to  notice  to  quit.^  Nor  is  notice  necessary  where 
the  term  is  fixed.' 

§  593.  Contract  to  Purchase  After  Original  Trespass 
Will  Not  Entitle  to  Notice. —  For  reasons  somewhat  dif- 
ferent, one  who  obtains  possession  of  the  lands  of  another, 
and  the  original  trespass  is  practically  condoned  by  the 
owner  of  the  fee,  who  enters  into  a  treaty  with  the  occu- 
pant to  convey  the  land,  and  it  is  subsequently  held  by  the 
occupant  under  such  contract  of  purchase,  this  will  not 
create  the  relation  of  landlord  and  tenant.*  There  being 
no  express  promise  to  pay  rent,  it  could  only  be  claimed 
upon  the  ground  that  the  use  and  occupation  raised  an  im- 
plied promise  to  that  effect.  But  where  there  is  an  express 
agreement  proven  as  the  foundation  of  the  occupancy,  there 
can  be  no  different  promise  implied  by  law.    An  express 

1  Bradley  v.  Covel,  4  Cow.,  349. 

2  Taylor  on  Land,  and  Ten.,  §  468. 
s  Young  V.  Smith,  28  Mo.,  65. 

*  Jackson  v.  French,  3  Wend.,  337. 


LA2TDL0RD   AND   TENANT.  343 

contract  of  purchase  being  sufficient  upon  which  to  predi- 
cate the  occupancy  by  the  covenantee,  he  enters  and  holds, 
not  as  a  tenant,  but  as  a  qiiasi  owner.^ 

§  594.  Trespasser  Negotiating  for  Lease  Not  Entitled 
to  Notice. —  Upon  similar  grounds  to  the  above,  where  one 
obtained  possession  of  a  house  without  the  privity  or  con- 
sent of  the  owner,  and  afterwards  entered  into  negotiations 
for  a  lease,  but  the  parties  failing  to  agree,  the  negotiations 
never  ripened  into  a  contract,  it  was  properly  held  that  this 
did  not  establish  between  the  parties  the  relation  of  landlord 
and  tenant,  and  that  the  latter  might  be  dispossessed  with- 
out antecedent  notice  to  quit.- 

§  595.  Bailiff  or  Servant  of  Owner  Not  Entitled  to 
Notice. —  Mere  possession  with  the  consent  of  the  owner 
does  not  create  this  relation,  even  when  such  possession  is 
under  no  express  contract  of  purchase.  The  occupant  may 
hold  the  possession  as  the  servant  or  bailijff  of  the  tenant  in 
fee.  As,  in  the  case  of  Jackson  v.  Sample,'  where  the  land 
had  been  occupied  for  some  twenty  3^ears  under  a  written 
agreement  by  the  occupant  to  "  hold,  keep  and  preserve  the 
possession,"  etc.,  of  the  land  in  question  "  to  and  for  "  the 
owner  and  his  heirs,  it  was  held  that  such  occupancy  would 
not  raise  any  implication  of  such  a  contract  as  would  entitle 
the  occupant  to  notice  from  the  owner  to  quit  the  posses- 
sion.^ 

§  596.  Tenancy  Not  Created  by  Holding  Over  Term. — 
Holding  over  after  the  expiration  of  the  term  originally 

iHaxris  v.  Frink,  2  Laus.  (N.  Y.),  35;  Tucker  v.  Adams,  53  Ala.,  254; 
Carpenter  v.  United  States,  17  Wall.,  489;  S.  C,  6  Ct.  CI.,  156;  Doe  v. 
Baker,  2  Dev.,  270;  Smith  v.  Stewart,  6  Johius.,  46;  Jackson  v.  Moncrief, 
5  Wend.,  26;  Doe  v.  Sayer,  3  Camp.,  8;  Glasscock  r.  Robards,  14  Mo., 
350.  But  see  Jackson  v.  Rowan,  9  Johns. ,  330,  where  it  is  held  that  one 
entering  under  a  contract  of  pvirchase  cannot  be  treated  as  a  wrong-doer 
and  ejected  without  notice  or  demand ;  also  Right  v.  Beard,  13  East, 
210;  Twyman  v.  Hawley,  24  Gratt.,  512. 

2  Doe  V.  Quigley,  2  Camp.,  505;  Grant  v.  White,  43  Mo.,  285. 

3  1  Johns.  Cas.,  231. 

<Doe  V.  Watts,  7  D.  &  E.,  83;  Cobb  v.  Stokes,  8  East,  358;  Jackson  v. 
Parkhurst,  5  Jobn.«.,  128;  Williams  v.  Deriar,  31  Mo.,  13. 


344  NOTICE  BY  wnicn  liabilities  extinguished. 

fixed  b}^  contract  does  not  in  every  instance  create  such  a 
general  tenancy  as  will  entitle  the  occupant  to  notice  to  quit. 
Thus,  where  the  original  term  is  for  one  year,  notice  not 
being  required  to  terminate  the  tenancy,  it  comes  to  an  end 
with  the  expiration  of  the  year,  and  primarily  the  tenant, 
by  continuing  in  possession,  becomes  a  wrong-doer,  and  may 
be  summarily  dispossessed.  In  order  to  give  such  tenant 
the  status  of  a  rightful  occupant  pf  the  premises,  there  must 
be  a  subsequent  payment  of  rent  or  other  recognition  of 
such  tenancy  by  the  landlord.  The  tenant  cannot,  by  sheer 
force  of  his  own  obstinacy  in  refusing  to  surrender  at  the 
expiration  of  the  term,  enlarge  the  character  of  his  tenancy.^ 
And  even  where  the  tenant  had  held  over  for  two  years, 
during  which  time  the  owner  remained  silent,  this  was  held 
insufficient  to  raise  the  presumption  of  his  consent  to  such 
holding  over  on  the  terms  of  the  original  lease.^ 

§  597.  Teuaiit  for  Life  of  Another  Not  Entitled  to  No- 
tice.—  Under  a  statute  by  which  a  tenant  at  sufferance  was 
entitled  to  one  month's  notice  to  quit,  it  was  held  that  a 
tenant  for  the  hfe  of  another,  holding  over  after  the  death 
of  cestui  que  vie,  was  not  entitled  to  any  notice  whatsoever, 
but  might  be  ejected  as  a  trespasser." 

§  598.  Contesting  Landlord's  Title  Not  Entitled  to  No- 
tice.—  So  a  tenant  who  undertakes  to  defeat  his  landlord's 
title  by  attornment  to  a  stranger,  or,  while  in  possession, 
accepts  a  convej^ance  in.  fee  from  one  who  claims  adversely 
to  the  party  under  whom  such  tenant  holds,  is  not  entitled  to 
notice,  but  may  be  dispossessed  upon  demand  and  refusal 
to  surrender  as  any  other  wrong-doer.* 

§  599.  Grantee  of  Mortgagor  Not  Entitled  to  Notice. — 

We  have  seen  that,  as  between  the  mortgagor  and  the  mort- 

'  gagee,  the  former  is,  when  in  possession,  in  the  absence  of 

express  stipulations  to  that  effect,  such  a  tenant  at  will  as 

1  Allen  V.  Jaquish,  21  Wend.,  638;  Rowan  v.  Lytle,  11  Wend.,  616. 

2  Den  v.  Adams,  12  N.  J.  (Law),  99;  Smith  v.  Littlefield,  51  N.  Y.,  539. 

3  Livingston  v.  Tanner,  14  N.  Y.,  64. 

*Sharpe  v.  KeUey,  5  Den.,  431;  Clarke  v.  Crego,  47  Bai'ber  (N.  Y.),  599. 


LANDLORD   AND   TENANT.  345 

to  be  entitled  to  notice  to  quit.'  But  where  the  mortgagor, 
in  possession  under  such  implied  tenancy  at  A\all,  makes  an 
absolute  conveyance  to  another,  his  grantee  does  not  suc- 
ceed to  his  rights  with  respect  to  notice.^  The  reason  given 
by  the  learned  judge  who  rendered  the  ojMnion  in  this  case, 
for  this  distinction,  was  that  "  the  sale  itself  is  an  act  of  dis- 
loyalty." There  must  be  a  privity  of  estate  between  the 
owner  and  the  occupant  to  entitle  the  former  to  notice, 
which  is  wholly  wanting  where  he  comes  in  by  purchase 
from  the  mortgagor,  who  himself  was  at  most  a  tenant  at 
^viU.3 

§  600.  Tenancy  at  Will  or  by  Sufferance. —  For  similar 
reasons  the  same  rule  applies  to  a  tenant  from  year  to  j^ear 
coming  in  under  the  mortgagor  after  the  date  of  the  mort- 
gage. He  is  a  tenant  at  will  in  the  strictest  sense,  or  a 
mere  tenant  by  sufferance.  He  cannot  be  said  to  hold 
under  the  mortgagee  unless  the  latter  recognizes  his  posses- 
sion in  the  most  unequivocal  manner,  as  by  acceptance  of 
rent,  or  some  similar  act  equally  significant  in  its  import, 
by  which  it  may  be  inferred  that  there  is  an  acceptance  of 
the  tenant  in  lieu  of  the  morto^ao-or.* 

§601.  Payment  of  Rent  without  Tenancy. —  As  we 
have  seen,  the  rule  generally  recognized  with  reference  to  a 
tenant  holding  over  after  the  expiration  of  his  term  is  that, 
if  such  holding  is  with  the  consent,  express  or  implied,  of 
his  landlord,  it  creates  a  general  tenanc}^  at  will,  which  can 
only  be  terminated  by  notice ;  ^  and  that  the  subsequent  pay- 
ment of  rent  furnishes  the  strongest  evidence  of  an  implied 
agreement  between  the  parties,  in  the  absence  of  proof  of 
an  express  stipulation.^    But  exceptional  cases  have  arisen, 

1  Siqyra,  §  589. 

2  Jackson  v.  Hopkins,  18  Johns.,  487. 
^  Jackson  ■?;,  Stackhouse,  1  Cow.,  122. 

4  Thunder  v.  Belcher,  3  East,  449;  Denn  v.  Rawlins,  10  East,  261; 
Rockwell  V.  Bradley,  2  Conn.,  1;  Den  v.  Bennett,  4  Ii-ed.  (N.  C),  123. 

5  Supra,  §  585  et  seq, 
« Supra,  §  587. 


346  NOTICE   BY   WHICH   LIABILITIES   EXTINGUISHED. 

where  the  occupant  of  the  premises  has  been  permitted  to 
remain  in  possession  with  the  consent  of  the  owner,  and  on 
payment  of  rent,  without  creating  such  a  tenancy  at  will  as 
to  require  notice  to  terminate  it.  Thus,  where  a  servant 
was  occupying  the  master's  house,  and,  upon  a  termination 
of  his  service,  was  permitted  to  continue  in  possession  until 
the  condition  of  his  wife's  health  was  such  as  to  admit  of 
her  safe  removal,  this  was  j-egarded  as  a  mere  license, 
depending  upon  a  future  contingent  event,  and  did  not  cre- 
ate the  relation  of  tenant,  either  at  will  or  by  sufferance, 
and  notice  to  quit  was  held  unnecessary.^ 

§  602.  Owner  of  Premises  May  Elect. —  Where  the  ten- 
ant holds  over  his  term,  and  before  the  landlord  has  done 
anj^thing  by  which  he  would  be  estopped  either  from  assert- 
ing or  denying  the  tenancy  at  will,  it  is  optional  with  him 
whether  the  relation  of  landlord  and  tenant  shall  be  con- 
tinued between  them.  He  may  have  extended  the  privilege 
of  remaining  in  possession  as  a  mere  license,  depending  for 
its  duration  upon  a  contingent  future  event.-  Or  he  may 
have  received  rent,  or  done  some  other  act  equally  express- 
ive of  his  assent  to  the  continuation  of  the  tenancy,  in  either 
of  which  events  he  will  have  parted  with  his  option  in  the 
matter  for  the  time  being.  But  when  the  end  of  the  term 
is  reached,  and  nothing  is  said  or  done  by  the  landlord,  the 
tenant,  by  remaining  in  possession,  has  thereby  given  expres- 
sion to  his  intentions  respecting  the  tenancy,  and  it  remains 
for  the  landlord  to  elect  to  hold  him  for  a  new  term,  or 
eject  him  as  a  trespasser.^  And  this  option  is  not  affected 
by  the  tenant's  refusal  to  accept  a  new  lease,  or  otherwise 
expressing  his  dissent,  subsequent  to  the  expiration  of  his 
term.* 

§  603.  Holding  Over  Under  Agreement  for  New  Lease. 
"Where  a  tenant  remains  in  possession  under  an  agreement 

1  Doyle  V.  Gibbs,  6  Lans.  (N.  Y.),  180. 

2  Supra,  %  601. 

3  Noel  V.  McCoory,  7  Coldw.,  623. 

4  Schuyler  v.  Smith,  51  N.  Y.,  309. 


LANDLORD   AND   TEXAJfT.  347 

with  the  landlord  for  a  new  lease,  whether  such  agreement 
be  express  or  impHed,  at  the  yearly,  quarterly,  or  monthly 
rate  of  his  original  term,  not  only  does  this  create  a  ten- 
ancy at  will  of  the  character  requiring  notice  to  quit,  but 
the  character  of  such  tenancy  will  not  be  changed  by  the 
landlord's  failure  to  carry  out  an  agreement  to  make  repairs. 
It  will  continue  an  estate  at  will  until  such  lease  is  exe- 
cuted.^ 

§  604.  Proof  of  Tenancy  from  Tear  to  Tear.— When 
the  agreement  between  the  parties  for  a  continuation  of  the 
relation  of  landlord  and  tenant  for  an  indefinite  period  is 
by  express  stipulation,  it  is  proved  as  any  other  contract. 
When  it  rests  altogether  on  inference,  whether  there  is  an 
implied  contract  of  letting  is  a  question  of  fact  for  the  jury.^ 

§  605.  Burthens  and  Benefits  Equally  Divided.— That 
featm'e  of  the  law  which  gives  the  landlord  his  election  to 
hold  as  a  tenant  at  will  one  who  holds  over  his  term,  or  to 
treat  him  as  a  trespasser,  seems  at  a  glance  to  give  the  land- 
lord an  undue  advantage.  It  enables  him  to  increase  the 
yearly  rent  over  that  of  the  expired  term,  as  a  condition  of 
his  assent  to  the  continuance  of  the  tenancy,  without  giving 
the  tenant  the  corresponding  advantage  of  insisting  upon 
a  reduction  of  the  rate  as  a  condition  of  the  renewal  of  his 
tenancy.  But  it  must  be  remembered  that  the  holding  over 
is  the  voluntary  act  of  the  tenant.  It  will  be  seen,  when  we 
come  to  consider  the  time  of  giving  notice^  that  witli  respect 
to  the  termination  of  uncertain  tenancies,  the  rights  and 
duties  are  divided  between  landlord  and  tenant  with  toler- 
able impartiahty. 

§  606.  Increase  of  Rate. —  When  there  is  a  tenancy  at 
wiU,  from  whatever  cause  it  has  arisen,  as  it  is  necessary  to 
give  notice  to  quit  for  a  certain  time,  depending  upon  the 
length  of  the  original  term,  it  would  seem  to  be  equally 
requisite  to  give  notice,  for  the  same  time,  of  an  intention 
to  demand  an  increase  of  rent,  and,  by  a  parity  of  reason- 

1  Emmons  v.  Scudcler,  115  Mass.,  367. 
2Chamberlin  v.  Donahue,  44  Vt.,  57. 


348  NOTICE   BY   "WHICH   LIABILITIES   EXTINGUISHED. 

ino-,  for  the  tenant  to  give  notice  for  the  same  time  of  an 
intention  to  demand  a  reduction;  for,  although  the  tenant 
holding  for  a  term  may,  by  silently  holding  over,  be  bound 
to  pay  an  increased  rent,  of  which  he  has  received  notice  a 
short  time  before  the  expiration  of  his  term,i  the  case  would 
necessarily  be  different  with  a  tenant  whose  tenancy  can 
only  be  terminated  b}^  notice.  In  the  latter  case  his  con- 
tinued occupancy  could  not  be  interpreted  as  an  assent  to 
the  demand  of  the  landlord  for  the  higher  rate. 

§  ()07.  Time  of  Notice. —  The  length  of  time  for  which 
notice  must  be  given,  in  order  to  terminate  a  general  ten- 
ancy at  wiU,  depends  upon  the  character  of  the  tenancy, 
whether  from  year  to  year  or  for  shorter  periods  with  indefi- 
nite renewals.^  At  common  law,  where  the  tenancy  is  from 
year  to  year,  the  notice  is  required  to  be  for  six  months ;  ^ 
and  by  "  six  months  "  is  meant  six  calendar  months,  or  half 
a  year.* 

§  r>08.  Time  Regulated  by  Statute.— But  even  where 
statutory  provisions  have  not  interposed  to  fix  a  different 
time,  the  six  months'  rule,  in  respect  to  tenancies  from  year 
to  year,  has  not  been  universally  adopted  in  this  country  by 
the  courts  of  the  different  states.^  Added  to  this  conflict  of 
authority  as  to  the  common  law  rule,  there  is  a  great  diver- 
sity in  local  statutes  varying  the  times  for  which  notice 
must  be  given,  from  three  months  to  fourteen  daj's,  which 
statutes  are  subject  to  annual  or  biennial  alteration. 

§  609.  Notice  Must  Expire  at  Commencement  of  New 
Term. —  But  the  question  of  time  relates  to  other  consider- 
ations, in  connection  with  the  notice  to  quit,  than  that  of  the 
number  of  days  or  months  elapsing  between  the  giving  of 
the  notice  and  the  time  therein  fixed  for  the  vacation  of  the 

*Hunt  V.  Bailey,  39  Mo.,  237;  Adriance  v.  Hafkemeyer,  id.,  134. 
2 Coffin  V.  Lunt,  2  Pick.,  70;  Ellis  v.  Page,  id.,  71  (note);  Doe  v.  Scott, 
6  Bing.,  363;  Kemp  v.  Derrett,  3  Camp.,  510. 
'Right  V.  Darby,  1  T.  R.,  159. 

*Doe  V.  Porter,  3  T.  R.,  13;  Den  v.  Mcintosh,  4  Ired.,  291. 
5  Rising  V.  Stannard,  17  Mass.,  382;  Logan  v.  Herron,  8  S.  &  R,  459. 


LA^TDLOED    AXD   TENANT.  349 

premises.  It  has  reference  to  the  date  of  giving  the  notice, 
and  the  intervening  time  between  that  and  the  end  of  the 
year,  or  other  period  of  holding  within  which  the  notice  is 
given.  In  this  respect,  the  rule  as  to  time  is  more  uniform. 
It  is  not  sufficient,  where  six  or  any  other  number  of  months' 
notice  is  required,  that  it  is  given  at  any  time,  and  to  expire 
upon  any  day  which  happens  to  suit  the  convenience  of  the 
party  giving  it.  The  notice  to  quit  at  the  end  of  six  months 
gives  the  tenant  the  right  to  occupy  the  premises  for  that 
time ;  and  if  the  expiration  of  the  notice  is  not  until  the 
anniversary  of  the  commencement  of  the  tenancy,  the  notice 
will  be  ineffectual.^ 

§  <J10.  Teuaiicy  by  the  Quarter. —  So,  where  the  tenancy 
was  from  three  months  to  three  months,  it  was  held  that 
the  notice  should  be  for  three  months  ending  at  the  close  of 
any  quarter,  reckoning  from  the  date  of  entry.  It  was  not 
sufficient  that  notice  to  quit  at  the  end  of  three  months 
from  the  date  of  the  notice  was  given,  but  the  three  months 
must  intervene  between  the  date  of  the  notice  and  the  end 
of  the  quarter.- 

§  611.  Tenant  from  Month  to  Month. —  So,  also,  where 
a  party  entered  under  an  agreement  to  accept  a  lease  for 
twenty  months  and  subsequently  refused  to  accept  the 
lease,  he  was  held  to  be  a  tenant  at  sufferance,  and  on  the 
payment  of  a  month's  rent  subsequent  to  his  entry,  he  be- 
came a  tenant  from  month  to  month,  commencing  from  the 
date  of  his  entry ;  and  to  dispossess  him,  the  landlord  was 
required  to  show  one  month's  notice  at  the  end  of  some 
month,  reckoning  from  the  date  of  entry.''  And  the  same 
rule  is  applicable  to  a  tenancy  from  week  to  week.-* 

iDoe  V.  IMUler,  2  Car.  &  P.,  348;  Bay  State  Bank  v.  Kiley,  14  Gray, 
492;  Hultain  v.  Munigle,  6  Allen,  220;  Doe  v.  Lea,  11  East,  312. 

2 Kemp  V.  Derrett,  3  Camp.,  510. 

3 Anderson  v.  Prindle,  23  Wend.,  616;  Doe  v.  Hazell,  1  Esp.,  94; 
Pricket -y.  Ritter,  16  lU.,  96;  Gunn  v.  Sinclair,  52  Mo.,  327.  It  is  held 
in  some  cases,  where  the  rent  is  payable  monthly  in  advance,  that  notice 
may  be  given  on  the  first  of  the  month,  and  is  to  expire  on  the  first  of 
the  month  next  ensuing.    Walker  v.  Sharpe,  14  Allen,  43. 

<  Doe  V.  Scott,  6  Ring.,  363. 


350  NOTICE    BY   WHICH    LIABILITIES   EXTINGUISHED. 

§  612.  Principal  and  Accessorial  Sul)ject  of  Demise. — 

The  time  of  giving  the  notice  is  occasionally  involved  in  un- 
certaint\"  arising  from  circumstances  that  cast  doubt  upon 
the  actual  date  of  entry.  A  party  may  have  leased  the  prem- 
ises with  the  right  of  entry  upon  a  portion  at  one  time  and 
the  right  to  enter  another  portion  at  another  time.  In  such 
an  event,  to  ascertain  the  date  of  commencement  of  the 
occupancy,  the  question  to  be  determined  is,  which  of  these 
two  portions  of  the  property  was  the  j)rincipal  or  substan- 
tial, and  which  the  accessorial,  subject  of  demise.  This  has 
been  held  to  be  a  question  of  fact.^  However,  where  the 
facts  ascertained  were  that  the  tenant's  entry  upon  all  that 
portion  of  the  premises  except  the  land  intended  for  tillage 
was  on  a  day  named  in  the  lease,  but  he  was  allowed  to 
enter  the  tillage  land  on  an  earlier  day  in  order  to  plow,  it 
was  concluded,  as  a  matter  of  law,  that  his  tenancy  com- 
menced with  his  subsequent  entry  and  occupation  of  the 
house  and  other  buildings,  and  not  from  his  prior  entry  for 
the  mere  purpose  of  plowing  the  tillage  land.- 

§  613.  The  Different  Kinds  of  Uncertain  Tenancies. — 
Although  there  is  considerable  unanimity  among  authorities 
as  to  the  time  when  notice  to  quit  must  be  given,  and  when 
it  should  expire,  in  cases  where  the  character  of  the  tenancy 
is  regarded  as  the  same,  still  there  seems  to  be  some  contra- 
riety of  view  as  to  the  kind  of  tenancy  created  by  a  partic- 
ular kind  of  holding ;  that  is,  whether  it  be  from  year  to 
year,  from  quarter  to  quarter,  or  from  month  to  month. 
The  reasonable  rule  is  laid  down  in  Anderson  v.  Prindle,' 
that  where  one  entered  under  a  parol  contract  to  lease  for 
a  term  of  one  year  and  eight  months,  and  remained  in  pos- 
session, paying  rent  Jy  the  month,  without  such  lease,  this 
created  a  tenancy  from  month  to  month.  The  effect  which 
is  here  given  to  time  of  payment  of  rent  is  denied  in  a  case 
decided  in  Missouri.*    Here  the  entry  was  under  a  parol 

iDoe  V.  Howard,  11  East,  498. 

2  Doe  V.  Spence,  6  East,  120;  Doe  v.  Watkins,  7  East,  551. 

3  23  Wend.,  616. 

<  Scully  V.  Murray,  34  Mo.,  420. 


LA>JDLOED    AND   TENANT.  351 

lease  for  years,  admitted  to  be  void  under  the  statute  of 
frauds,  and  a  payment  of  rent  by  the  month ;  it  was  never- 
theless held  to  be  a  tenancy  from  year  to  year.  In  the 
opinion  in  this  case,  an  earlier  case  by  the  same  court  is 
cited  with  approval,  but  there  nothing  is  disclosed  as  to  the 
times  of  paying  rent.^  It  is  held,  however,  in  Ridgely  v. 
Stillwell,^  where  the  tenant  entered  and  paid  rent  by  the 
month,  without  either  a  written  or  parol  lease,  or  contract 
for  a  lease  for  anj^  term  whatsoever,  that  this  was  construct- 
ively a  tenancy  from  year  to  year.  In  rendering  the  opinion 
the  learned  judge  says:  "So,  a  tenancy  from  month  to 
month,  or  for  any  aliquot  part  of  a  year,  may  be  created 
by  express  contract,  or  perhaps  be  implied  from  circum- 
stances ;  but  the  circumstance  that  rent  is  payable  monthly, 
or  quarterly,  or  yearly,  or  half-j^early,  does  not  show  that 
the  holding  is  not  yearly.  In  the  absence  of  any  other 
proof,  the  legal  presumption  remains  that  the  tenancy  is  a 
yearly  one."  The  question  raised  here  seems  to  be  one  of 
evidence,  and  it  is  decided  that  the  mere  payment  of  rent 
by  the  month,  in  the  absence  of  corroborative  circumstances, 
will  not  be  suiRcient  to  prove  a  monthly  tenancy.  There 
are,  doubtless,  other  circumstances  of  a  more  convincing 
character  than  the  mere  recurrence  of  rent  da3\  Neverthe- 
less, when  the  premises  are  held  for  a  period  of  uncertain 
duration,  whether  as  the  result  of  holding  over  the  original 
term,  entry  under  a  void  lease,  or  under  a  parol  contract  for 
a  lease  which  is  never  executed,  or  by  whatever  manner 
tenancies  at  will  of  this  sort  may  be  created,  when  there  is 
no  stronger  evidence  of  a  tenancy  from  year  to  year,  the 
fact  that  the  rent  is  paid  monthly  would  be  sufficient  to 
carry  conviction  to  an  ordinary  mind  that  the  holding  was 
from  month  to  month. 

§  614.  Circumstances  by  Which  it  May  be  Deter- 
mined.—  But  the  countervailing  circumstances  by  which  the 
periodical  payment  of  rent,  as  evidence  of  the  periods  from 
which  the  premises  are  rented,  may  be  overcome,  are  seldom 

iKerr  v.  Clark,  19  Mo.,  132. 
2  25  Mo.,  570. 


352  NOTICE   BY   WHICH   LIABILITIES   EXTINGUISHED. 

wanting  when  the  payment  of  the  rent  does  not  fairly  ex- 
press the  will  of  the  parties.  The  habits  and  customs  of 
the  locality ;  the  general  conduct  of  the  parties,  with  refer- 
ence to  the  property,  and  above  all,  the  nature  of  the  subject 
of  demise,  and  the  manifest  use  for  which  it  was  intended, 
would  all  have  a  bearing  upon  the  question  of  the  length  of 
the  term  for  which  the  premises  were  occupied.  It  would 
be  difficult  to  believe  that  one  would  occupy  a  farm  as  ten- 
ant from  month  to  month,  or  for  any  term  shorter  than  a 
year,  even  though  the  rent  were  paid  by  the  month  or  by 
the  quarter.  Where  to  occupy  the  premises  profitably  or 
comfortably  it  became  necessary  to  make  extensive  improve- 
ments, or  to  set  up  cumbersome  and  expensive  machinery, 
and  the  premises  were  let  with  a  view  to  the  making  of  all 
necessary  changes,  the  payment  of  rent  b}''  the  month  would 
hardly  be  sufficient  evidence  of  a  monthly  tenancy. 

§  615.  By  Whom  Notice  Giyeii. —  It  having  been  already 
stated  that  the  notice  to  quit  may  and  should  be  given  by 
either  landlord  or  tenant,  in  the  event  that  a  termination  of 
the  tenancy  is  desired  by  either,^  it  only  remains  to  show, 
with  respect  to  the  party  from  whom  notice  should  come, 
how  circumstances  may  render  a  notice  to  quit  valid,  which 
does  not  proceed  directly  from  the  one  in  whose  behalf  it  is 
given.  The  circumstances  by  which  any  other  than  direct 
notice  is  authorized  are  chiefly  such  as  grow  out  of  the  rela- 
tions between  parties  as  joint  tenants,  tenants  in  common, 
copartners,  or  principal  and  agent. 

§  616.  Joint  Lessees  or  Lessors. —  As  to  the  effect  of 
notice  from  one  or  two  or  more  joint  lessors  or  lessees,  or 
from  any  number  less  than  all,  upon  the  opposite  party,  there 
is  some  conflict,  but  the  weight  of  authority  seems  to  be 
that  such  notice  must  come,  either  directly  or  indirectly, 
from  all,  in  order  to  be  binding  upon  the  party  notified,  as 
to  the  entire  interest  represented  by  the  opposite  parties.^ 

1  Supra,  §  578. 

flight  V.  CutheU,  5  East,  491;  Doe  v.  Chaplin,  3  Taunt.,  120;  Good- 
title  V.  Woodward,  3  B.  &  Aid,,  689.  Contra,  Doe  v.  Summersett,  1  B. 
&  Ad..  135. 


LAXDLOED   A^T>    TENANT.  353 

Thus  where  a  notice  to  quit  was  given  by  two  of  three  joint 
lessors,  it  was  held  insufficient  to  terminate  the  entire  ten- 
ancy, so  as  to  enable  the  three  lessors  to  join  in  summary 
proceedings ;  although  it  would  be  sufficient  as  to  the  in- 
terests of  those  giving  the  notice.^  And  tenants  in  common, 
whether  lessors  or  lessees,  would  possess  no  greater  author- 
ity with  respect  to  the  interests  of  each  other  than  would 
joint  tenants. 

§  617.  Partners. —  "Where,  however,  the  joint  lessors  or 
lessees  are  partners  in  trade,  and  the  subject  of  the  demise 
is  partnership  property,  they  are  placed  upon  a  different 
footing,  in  respect  to  their  relative  rights,  from  that  occu- 
pied by  ordinary  joint  tenants  or  tenants  in  common.  No- 
tice, therefore,  by  one  in  the  firm  name  would  be  sufficient 
to  bind  the  partners.^  The  reason  why  it  is  so  strongly  in- 
sisted that  the  notice  must  come  from  the  party  whose 
rights  are  sought  to  be  enforced  thereby,  is  that  the  party 
notified  is  entitled  to  a  notice  upon  which  he  can  act  with 
safety. 

§  618.  One  Giving  Notice  as  Agent  of  Co-tenant.— 
But  even  when  the  co-tenants  in  whose  names  the  notice  is 
given  do  not  sustain  towards  each  other  the  relation  of 
partners,  notice  from  one  will  be  sufficient,  if  given  in  the 
name  and  by  authority  of  his  co-tenants.'  Where  a  notice 
is  given  by  one  joint  tenant  or  tenant  in  common,  for  him- 
self and  co-tenants,  it  derives  its  force  and  validity,  not  by 
reason  of  the  co-tenancy,  but  from  the  special  authority 
conferred  upon  the  acting  party.  He  acts  as  the  agent  of 
the  others,  and  his  exercise  of  authorit}'-  will,  in  aU  essential 
respects,  rest  upon  the  general  doctrine  of  agenc3^ 

§619.  Agent  Must  Have  Authority  at  the  Time.— 
ISTevertheless,  there  is  one  essential  difference  between  no- 
tices to  quit,  given  by  an  agent,  and  notices  of  a  general 
character  communicated  by  the  same  means.     In  general, 

1  Pickard  v.  Perley,  45  N.  H.,  188. 

2  Doe  V.  Huline,  2  Mann.  &  Ry.,  433. 
'Taylor  on  Land,  and  Ten.,  §  479. 

23 


354  NOTICE    BY    WHICH    LIABILITIES    EXTINGUISHED. 

"vvliere  notice  is  given  by  one  in  the  name  of  another,  and 
the  pretended  agent  acts  without  authority  previously  con- 
ferred, such  acts  may  be  rendered  vaUd  and  binding  by  a 
subsequent  ratification  of  the  assumed  agency  by  the  party 
in  whose  behalf  tlie  notice  was  given.^  So  far  from  this 
being  the  prevalent  doctrine  respecting  the  kind  of  notices 
under  consideration,  it  is  generally  laid  down  that,  as  the 
rights  and  duties  of  the  party  notified  depend  upon  the 
validity  of  the  notice  to  quit,  to  be  effectual  for  the  purpose 
of  determining  the  tenancy,  it  must  be  given  by  one  possess- 
ing authorit}^  when  he  gives  such  notice,  or  whose  act  is 
ratified  by  the  principal  at  the  proper  time  for  giving  it.- 
If  unauthorized  when  given,  it  depends  upon  subsequent  rati- 
fication for  its  life,  and  unless  ratified  a  sufiicient  time 
before  the  period  fixed  for  quitting,  the  party  so  notified 
will  not  have  the  notice  to  which  he  is  by  law  entitled. 

§  620.  Agency  Must  Extend  to  the  Duty  Undertaken. — 
Where  notice  is  given  by  one  as  agent  of  another,  it  is  not 
sufficient  that  there  should  be  subsisting  between  them  the 
relation  of  principal  and  agent.  The  agency  must  extend 
to  the  ])articular  duty  undertaken,  or  the  notice  will  be  as 
ineffectual  as  though  coming  from  any  other  intermeddler. 
Thus,  where  an  agent  appointed  merely  for  the  purpose  of 
collecting  rents  undertakes  to  dispossess  a  tenant  by  notice 
to  quit,  the  latter  is  neither  bound  to  recognize  such  notice, 
nor  can  he  safely  take  advantage  thereof,  in  order  to  termi- 
nate the  tenancy.^ 

§  621.  When  Authority  Inferred. —  When  the  one  giv- 
ing the  notice  has  been  clothed  with  authority  to  let  the  prem- 
ises, and  is  depended  upon  by  the  owner  to  provide  suitable 
tenants,  his  authority  to  give  notice  to  any  particular  tenant 
to  quit  might  reasonably  be  inferred.    And  when  the  tenant 

1  See  post,  ch,  IX,  part  III. 

2  Doe  V.  Walters,  10  B.  &  C,  626;  Pickard  v.  Perley,  45  N.  H.,  188; 
Doe  V.  Goldwin,  1  G.  &  D.,  463;  Brahn  v.  Jersey  City  Forge  Co.,  38  N. 
J.  L.,  74;  2>ost,  ch.  IX,  part  III. 

3  Doe  V.  IVIizem,  3  Mood.  &  R.,  56. 


LANDLORD  AND  TENANT.  355 

is  reiDresentecI  by  an  agent  whose  duty  it  is  to  provide  prem- 
ises suitable  for  the  purposes  of  his  principal,  the  tenancy 
may  be  terminated  by  notice  from  him,  but  notice  from  an 
agent  of  an  agent  will  not  be  recognized  without  the  prin- 
cipal's approval.^ 

§  G22.  Notice  by  Corporation. —  When  the  notice  is  given 
on  behalf  of  a  corporation,  it  seems  almost  needless  to  say 
that  it  should  come  from  an  officer  of  such  corporation ;  and 
whether  the  giving  of  such  notice  falls  within  the  scope  of 
his  authority  or  not,  the  tenancy  may  be  thereby  terminated 
if  the  act  be  approved  in  time  by  the  corporation.- 

§  623.  By  Receiver. —  A  receiver,  appointed  by  a  court 
of  chancery  to  take  charge  of  real  estate,  with  general 
authority  to  let  lands  from  year  to  year,  does  not  act  with 
respect  to  the  property  committed  to  his  charge  in  the  ca- 
pacity of  an  agent  of  the  owner,  but  as  an  officer  of  the 
court,  and,  under  his  general  authority,  may  terminate  the 
tenancy  by  notice  to  quit,  given  in  his  official  capacity.' 

§  624.  When  by  Tenant. —  AVhere  the  notice  is  to  the 
landlord,  it  should  come  from  his  immediate  tenant  or  his 
tenant's  assignee,  between  whom  and  himself  there  is  some 
privity  of  contract  or  estate.  The  notice  could  not  prop- 
erly come  from  the  under-tenant  to  the  landlord,  though 
his  tenancy  might  be  affected  by  notice  passing  between 
the  tenant  under  whom  he  holds,  and  the  owner  of  the  fee.* 

§  625.  When  by  Landlord. —  Where  the  notice  is  from 
the  landlord,  it  must  be  given  to  his  immediate  tenant,  or  to 
the  assignee  of  such  tenant,  for  the  same  reason  expressed 
in  the  next  preceding  section,  in  respect  to  notice  from  the 
tenant  to  the  landlord.  And  it  is  not  important  that  the 
tenant  to  be  notified  be  in  actual  possession  of  the  premises 
at  the  time  the  notice  is  given.     If  he  continues  to  pay  the 

1  Doe  V.  Robinson,  3  Bing.  N.  C,  677. 
-Roe  V.  Pierce,  2  Camp.,  96. 
3  Doe  V.  Read,  13  East,  57. 

*  Pleasant  v.  Benson,  14  East,  234 ;  Taylor  on  Landlord  and  Tenant, 
§481. 


356  NOTICE   BY   WHICH   LIABILITIES   EXTINGUISHED. 

rent,  notice  should  be  given  to  hira,  though  the  premises  be 
occupied  by  another.' 

§  626.  To  Whom  Given. — Although  notice  from  the  land- 
lord should  be  given  to  the  one  recognized  as  his  immediate 
tenant,  and  not  to  one  who  is  simply  a  sub-lessee  or  under- 
tenant, from  the  mere  fact  that  the  latter  is  the  only  one  in 
actual  possession  of  the  premises,  yet  where  the  tenant  who 
originally  entered  under  the  landlord  has  abandoned,  or 
given  up  the  possession,  and  another  has  entered  and  occu- 
pies apparently  in  the  same  manner  and  to  the  same  extent 
as  his  predecessor,  he  may  be  treated  by  the  landlord  as  as- 
signee of  the  original  tenant,  and  served  with  notice  to  quit.^ 
"Where  the  tenant  undertakes  to  put  an  end  to  the  tenancy 
by  notice,  it  must  be  given  to  his  immediate  landlord,  or  the 
one  to  whom  he  pays  rent,  or  his  agent.  If  it  be  an  under- 
tenant, his  purpose  will  not  be  accomplished  by  giving  no- 
tice to  the  owner  of  the  premises,  or  one  under  whom  his 
own  landlord  holds  as  tenant.' 

§627.  Joint  Tenants  —  Tenants  in  Common  —  Part- 
ners.—  It  has  been  laid  down  that  where  two  or  more  are 
in  possession  of  the  premises  as  joint  tenants  or  tenants  in 
common,  a  notice  addressed  to  all  and  served  upon  one 
would  raise  a  presumption  that  the  notice  reached  his  co- 
tenants;^  and  it  has  even  been  held  that  a  verbal  notice  to 
one  of  two  joint  tenants  would  suffice  to  terminate  the  ten- 
ancy as  to  both.*  But  it  is  difficult  to  see  why  tenants  in 
common,  or  joint  tenants,  should  be  affected  by  notice  given 
to  a  co-tenant  under  circumstances  where  they  would  not  be 
affected  either  to  their  advantage  or  disadvantage  by  a 
notice  proceeding /"ro??!  the  same  co-tenant,  without  their 
authority.^    There  can  be  no  doubt,  however,  that  where 

1  Tucker  v.  Baker,  10  Johns.,  270. 

•-!  Doe  V.  Williams,  6  B.  &  C,  41 ;  Doe  v.  Murless,  6  M.  &  S.,  110. 

3  Taylor  on  Land,  and  Ten.,  §  481. 

*  Doe  V.  Watkins,  7  East,  551 ;  Taylor  on  Land,  and  Ten.,  §  481. 

5  Doe  V.  Crick,  5  Esp.,  196. 

6  See  ante,  §  616  et  seq. 


LANDLOED  AND  TENANT.  357 

the  parties  to  be  notified  are  jointly  interested  in  the  subject 
of  the  demise,  either  as  lessors  or  lessees,  and  are  partners 
with  respect  to  the  property,  that  notice  to  one  would  be 
notice  to  all,  especially  where  the  notice  was  given  ostensibly 
to  both  or  all  of  such  partners. 

§  628.  Notice  to  Corporation. —  A  corporation,  whether 
as  landlord  or  tenant,  can  only  be  reached  with  notice 
through  its  authorized  officers.  But  it  might  mislead  to  say 
that  the  notice  should  be  to  the  officer,  though  he  is  unques- 
tionably the  proper  one  to  serve.  There  may  be  several 
officers  either  of  whom  could  accept  service  of  the  notice, 
but  the  notice  should  be  given  to  the  corporation  itself ;  that 
is,  it  should  be  addressed  to  the  corporate  body  and  not  to 
its  official  representative.' 

§  629.  Form  and  Sufficiency. —  As  to  what  is  necessary 
to  constitute  a  notice  sufficient  in  form,  the  requirements 
of  the  common  law  are  not  very  exacting.  It  may  be  verbal 
or  written,^  though  in  this  respect  there  have  been  such  stat- 
utory changes  of  the  law  that  now  the  notice  is  generally 
required  to  be  in  writing.' 

§  630.  Address  of  Written  Notice. —  Much  that  has  ref- 
erence to  the  form  and  sufficiency  of  a  notice  to  quit  has 
already  been  suggested  in  treating  of  the  time  of  giving 
notice,  and  hy  ivhom  and  to  whom  it  should  be  given.  Where 
the  notice  is,  as  is  generally  required,  in  writing,  it  should 
of  course  be  addressed  to  the  party  to  be  affected  thereby, 
and  should  be  properly  signed  by  the  party  giving  it,  or  in 
his  name  by  his  agent ;  but  slight  and  unimportant  errors 
or  omissions  in  these  respects  will  not  destroy  its  effect.  It 
is  of  more  importance  that  the  notice  should  go  to  the  right 
party  than  that  it  should  be  properly  addressed  to  him. 

1  Ante,  §  616  ct  seq. ;  Doe  v.  Woodman,  8  East,  228. 

2  Doe  V.  Wrightman,  4  Esp.,  5. 

3  Parol  notice  of  six  months,  to  terminate  a  tenancy  from  year  to  year, 
has  been  lield  void,  as  in  contravention  of  the  statute  of  frauds.  John- 
stone V.  Huddlestone,  4  B.  &  C,  923. 


358  NOTICE   BY   WHICH   LIABILITIES    EXTINGUISHED. 

§  631.  V*'hat  Notice  to  Contain. —  Whether  the  notice  be 
given  under  the  provisions  of  a  statute,  or  as  required  at 
common  law,  it  would  not  be  sufficient  should  it  fail  to  ex- 
press with  reasonable  exactness  the  day  on  which  the  prem- 
ises are  required  to  be  vacated;  for  although  the  law- 
requires  that  notice  shall  be  given,  to  go  into  effect  at  a 
particular  time,  as  at  the  end  of  the  year,  the  quarter,  or 
the  month,  it  is  essential  that  the  notice  should  itself  be 
sufficiently  specific  to  designate  the  date  of  its  expu^ation,^ 

§  632.  Statement  of  Cause  Required. — When  the  notice 
is  given  to  a  tenant,  under  a  statutory  provision  for  non- 
payment of  rent,  which  may  be  for  a  shorter  time  than  that 
pro\dded  for  putting  an  end  to  tenancies  at  will,  or  from 
year  to  year,  it  should  not  only  state  the  day  upon  which 
the  tenant  is  required  to  quit,  but  it  should  also  specify  the 
cause  for  which  the  tenancy,  whether  it  be  for  a  designated 
term,  or  is  of  uncertain  duration,  is  intended  to  be  thus 
terminated.^ 

§633.  Time  Mentioned  in  General  Terms. —  ISTeverthe- 
less,  it  is  by  no  means  essential  that  the  notice  should  men- 
tion the  precise  day  on  which  the  tenancy  is  to  expire,  but 
if  otherwise  stated  correctly,  the  time  may  be  mentioned 
in  general  terms.  Therefore  a  notice  to  quit  at  the  end  of 
the  month  or  quarter,  as  the  case  may  be,  which  will  expire 
next  subsequent  to  the  day  when  the  rent  shall  again 
become  due,  without  specif;^ing  the  exact  day  of  the  month, 
would  be  sufficient  to  terminate  a  tenancy  at  will,  for  the 
reason  that  it  designates  with  sufficient  certainty  a  day 
equally  within  the  knowledge  of  both  tenant  and  landlord.'^ 

§  634.  Tenant  from  Week  to  Week. —  So  where  a  tenant 
from  week  to  week  receives  notice  to  quit  the  premises  oc- 

1  steward  v.  Harding,  2  Gray,  335;  Oakes  v.  Munroe,  8  Cush.,  282; 
Boynton  v.  Bodwell,  113  Mass.,  531. 

2  Ciirrier  v.  Baker,  2  Gray,  224. 

sSanford  v.  Harvey,  11  Cush.,  93;  Granger  v.  Brown,  id.,  191;  Kemp 
V.  Derrett,  3  Camp.,  510. 


LANDLORD    AND    TENANT.  359 

cupied  by  him  as  such  tenant,  on  a  subsequent  Friday,  pro- 
vided his  tenancy  expired  on  that  day,  otherwise  at  the  end 
of  his  tenancy  next  after  one  week  from  the  date  of  the 
notice,  this  was  held  sufficiently  specific  in  its  terms  to  en- 
title the  landlord  to  possession  at  the  expiration  of  the  time 
therein  indicated.' 

§635.  Must  Not  Demand  Possession  "Forthwith,"— 
But  where  the  statutorj^  notice  was  required  to  be  given 
fourteen  days  prior  to  the  time  of  quitting,  a  notice  which 
was  given  the  full  time  prescribed  before  the  bringing  of 
an  action  by  the  landlord  for  possession,  but  Avhich  in  terms 
demanded  the  vacation  of  the  premises  "forthwith,"  was 
held  insufficient,  as  not  designating  the  time  when  the  land- 
lord would  be  entitled  to  possession  after  notice.^ 

§  636.  Undue  Strictness  Not  Required.—  Where  the 
notice  is  executed  by  an  agent,  or  any  one  acting  in  a  rep- 
resentative capacity,  it  .is  not  necessary,  in  order  to  entitle 
such  notice  to  recognition  by  the  party  notified,  that  it 
should  possess  all  the  formal  requisites,  as  to  execution,  etc., 
deemed  essential  in  case  of  a  letter  of  attorney ;  but  it  will  be 
regarded  as  sufficient  in  this  respect  if  it  informs  him  as  to 
the  source  from  Avhich  the  notice  proceeds.  Thus,  where 
the  landlord  was  one  C.  M.  H.,  and  the  notice  to  quit  was 
signed,  "  For  C.  M.  H.,  by  W.  C.  P.,  an  authorized  agent," 
it  was  held  to  be  formally  sufficient.* 

§637.  Description. —  The  notice  should  also  be  suffi- 
ciently specific  in  the  description  of  the  subject  of  demise, 
not  to  mislead  the  other  part}'',  nor  leave  him  in  any  doubt 
as  to  what  property  is  intended  to  be  designated.'*  And 
where  the  notice  is  substantially  defective  in  this  particular, 
it  will,  for  obvious  reasons,  be  altogether  nugatory,  how- 
ever precise  and  exact  it  may  be  in  its  conformity  to  legal 
requirements,  in  all  other  respects.    Where  there  are  sev- 

iDoe  V.  Scott,  6  Bing.,  363. 
2ElUott  V.  Stone,  12  Cush.,  174. 
3  Reed  v.  Hawley,  45  ni.,  40. 
•«  King  V.  Conolly,  44  Ccol.,  236. 


360  NOTICE  BY  wnicn  liabilities  extinguished. 

eral  different  places  occupied  by  the  same  tenant,  under  the 
same  landlord,  the  law  will  not  be  satisfied  by  the  giving 
of  a  notice,  either  by  landlord  or  tenant,  which  is  so  gen- 
eral in  its  description  of  the  premises  as  to  apply  equally 
well  to  either. 

§  638.  Substantial  Accuracy  Alone  Required. —  IsTever- 
theless,  in  this  particular,  as  in  all  others  regarding  notices 
of  this  sort,  what  the  law  requires  is  substantial,  and  not 
technical,  accuracy,  and  Avill  not  regard  mistakes  in  the  de- 
scription which  do  not  tend  to  mislead  the  party  notified. 
Thus,  where  the  language  of  the  notice  was  to  quit  that 
"messuage,  farm,  etc.,  situated  at  D.,  in  the  county  of  York, 
which  you  now  hold  under  me,  as  tenant  from  year  to 
year,"  and  it  appeared  on  the  trial  that  the  farm  intended, 
and  the  only  one  occupied  by  the  tenant,  was  not  situated  at 
D.,  but  at  H.,  and  that  D.  and  H.  were  adjoining  parishes, 
the  variance  was  held  immaterial,  as  not  calculated  to  mis- 
lead the  tenant.^ 

§639.  Illustration  of  Sufficient  Certainty. —  Where, 
according  to  the  terms  of  a  lease  for  a  term  of  years,  either 
party  was  at  liberty  to  terminate  the  same  at  the  expira- 
tion of  the  fourteenth  year,  and  there  were  several  different 
tracts  held  under  the  same  lease,  and  notice  to  quit  was 
given,  describing  only  a  part  of  the  property  included  in 
the  lease,  but  adding  the  words,  "  agreebly  to  the  terms  of 
the  covenant  between  us,  on  the  expiration  of  the  fourteenth 
year  of  our  term,"  this  was  held  to  indicate  with  sufficient 
certainty  that  it  was  intended  to  apply  to  all,  for  the  reason 
that  the  covenants  referred  to  did  authorize  a  termination 
of  the  lease  as  to  part,  and  a  continuation  of  the  term  as  to 
the  rest,^ 

§  640.  Service  of  Notice. —  There  is  not  a  great  deal  to 
be  said  as  to  the  manner  and  mode  of  serving  notices  of 
this  kind,  beyond  what  is  repeatedly  laid  down  in  other  por- 
tions of  this  work  with  respect  to  the  service  of  notices,  by 

1  Doe  V.  "Wilkinson,  13  Ad.  &  El.,  743. 
■  Doe  V.  Archer,  14  East,  245. 


LAITOLORD   AXD   TEXA2\'T.  361 

which  the  rights  of  the  party  notified  are  affected.  Any 
manner  of  serving  tlie  written  notice  will  suffice,  when  it 
can  be  traced  to  the  hands  of  the  party  for  whom  it  was 
intended,  in  due  time.  Personal  notice  is  always  best,  be- 
cause it  is  more  direct,  and  when  service  upon  the  party  in 
person  is  practicable,  it  should  be  the  mode  adopted.  But 
were  there  no  other  way  of  bringing  these  tenancies  to  an 
end,  short  of  notice  delivered  to  the  landlord  or  tenant  in 
person,  they  might  be  rendered  of  indefinite  duration,  by 
the  avoidance  of  notice  on  the  part  of  the  party  whose  in- 
terests dictated  such  a  course.  For  this  reason  the  doctrine 
has  long  since  been  recognized,  that,  even  in  the  absence  of 
a  statute  for  that  purpose,  notice  to  quit  may  be  effectually 
served  upon  the  tenant  during  his  absence,  by  leaving  the 
same  at  his  usual  place  of  abode,  whether  it  be  upon  the 
leased  premises  or  not,  with  his  wife  or  other  suitable  member 
of  the  family,  or  even  with  a  servant.^  And  where  the  party 
has  a  place  of  business,  he  may  be  effectually  notified  by  leav- 
ing the  written  notice  at  such  place,  with  some  one  in  charge.- 
§641.  May  be  Waived. —  This,  like  almost  every  other 
species  of  notice,  required  by  law  for  the  preservation  of  a 
right,  or  the  exaction  of  a  duty,  may  be  waived.  It,  how- 
ever, possesses  one  peculiarity  in  this  respect  not  common  to 
all  other  kinds  of  notice,  and  that  is,  that  the  waiver  may 
be  either  before  the  notice  is  given,  after  the  time  for  giving 
it  has  elapsed,  or  subsequent  to  the  giving  of  the  notice, 
when  it  has  been  given  in  due  time.  It  may  be  Avaived  by 
either  party  before  it  is  due  or  after  failure  to  give  notice, 
by  acting  in  conformity  to  the  wishes  of  the  other  party  in 
amicably  terminating  the  tenanc}^  precisely  as  though  notice 
had  been  given.  It  may  also  be  substantially  waived  by 
acting  upon  a  defective  notice.  And  there  may  be  a  waiver 
of  notice  by  the  party  giving  it,  when  he  subsequently  acts 
toward  the  other  party  precisely  as  though  no  such  notice 
had  been  given. 

1  Jones  V.  Marsh,  4  T.  R.,  464 ;  aark  v.  Keliher,  107  Mass.,  408. 

2  Walker  v.  Shariie,  103  Mass.,  154. 


3G2  KOTICE   BY   "\;\'HICH    LIABILITIES   EXTINGUISHED. 

§  C42.  Toluntary  Surrender. — Where  there  has  been  a 
voluntary  surrender  of  the  premises  by  the  tenant,  and  an 
acceptance  thereof  by  the  landlord,  the  necessity  for  notice 
to  quit  is  thereby  dispensed  with,  and  either  party  would  be 
justified  in  treating  the  tenancy  as  at  an  end  from  the  time 
of  such  surrender  and  acceptance.  The  transaction  pos- 
sesses all  the  essential  characteristics  of  any  executed  con- 
tract, and  for  that  reason  it  would  be  equally  effectual  as 
a  waiver  of  notice  whether  it  were  verbal  or  written.^ 

§643.  Parol  Surrender  and  Acceptance. —  So  where 
premises  were  thus  surrendered  and  accepted,  though  by 
parol,  and  no  claim  for  rent  Avas  made  for  seven  years  there- 
after, and  the  premises  were  relet  to  others,  the  surrender 
was  treated  as  an  accomplished  fact,  and  not  to  be  affected 
by  the  statute  of  frauds.'-  And  a  surrender  of  this  kind,  and 
the  acceptance  by  the  landlord,  may  be  proven  by  the  ch'cum- 
stance  that  the  landlord  relet  the  premises  dming  the  term  for 
which  the  tenant  would  have  been  held  but  for  the  surrender.' 

§  644.  Offering  to  Let  Xot  Waiver.—  But  where  the 
tenant  is  absent  for  a  time,  or  even  without  the  intention  of 
returning  at  all,  and  during  such  absence  the  landlord  offers 
the  place  to  let  b}"  putting  up  placards  on  the  premises,  or  by 
what  means  soever  he  may  choose  to  adopt,  whether  public 
or  private,  unless  the  place  is  actualh'  rented,  the  landlord 
will  not  be  held  to  have  accepted  the  surrender,  and  thereby 
waived  his  right  to  notice.* 

§  645.  Parol  Surrender  Must  Go  Into  Immediate  Ef- 
fect.—  In  order  that  a  parol  surrender  may  be  effectual,  it 
must  o;o  into  effect  at  the  time  the  same  is  offered.  It  will 
not  be  sufficient  to  terminate  a  tenancy  from  year  to  year 
when  there  is  merely  a  verbal  offer  to  smTender  prior  to  the 
time  when  it  is  proposed  to  give  up  the  premises,  which 
offer  is  accepted  in  the  same  manner,  where  the  statute  of 

1  Whitehead  v.  Clifford,  5  Taunt.,  518;  Williams  v.  Jones,  1  Bush  (Ky.), 
621. 

2  Pratt  r.  Richards,  69  Pa.  St.,  53. 

3  Witrnan  v.  Watiy,  31  Wis.,  638. 

<Pier  V.  Carr,  69  Pa.  St.,  326;  Redpath  v.  Roberts,  3  Esp.,  225. 


LANDLORD   AND   TENANT.  303 

frauds  is  recognized.^  It  is  provided  by  this  stcatute  that 
"  no  lease  or  term  of  years,  or  any  uncertain  interest  of  or 
in  any  messuages,  lands,  tenements  or  hereditaments  shall  be 
surrendered,  unless  by  deed  or  note  in  writing,  or  by  act 
and  operation  of  law."  Therefore  parol  notice  less  than  six 
months  before  the  day  on  which  the  tenant  is  to  quit,  that 
he  will  on  that  day  vacate  the  premises,  to  which  the  land- 
lord assents,  being  insufficient  as  a  notice  on  account  of 
shortness  of  the  time,  is  void  as  a  surrender,  for  the  reason 
that  it  is  to  take  effect  m  futuro,  and  is  not  reduced  to 
writing.^ 

§  646.  Terbal  License  to  Surrender  Tenancy  from  Year 
to  Tear  Inoperative. —  So  where  a  dispute  arose  betAvceu 
a  tenant  from  year  to  year  and  his  landlord  concerning  re- 
pairs, and  the  tenant  threatened  to  quit  the  premises,  to 
which  the  landlord  rephed,  "You  may  quit  when  you 
please !  "  and  the  tenant  accordingly,  a  few  days  thereafter, 
left  the  premises,  it  was  held  that  this  did  not  terminate 
the  tenancy,  and  the  tenant  would  still  be  liable  for  rent.^ 

§  647.  Defects  in  Notice  May  be  Waived.— The  defects 
in  a  notice  which  is  insufficient  for  the  reason  that  it  desig- 
nates no  time,  either  specially  or  in  general  terras,  may  be 
waived,  so  as  to  give  it  all  the  force  and  effect  of  a  regular 
and  perfect  notice.  Thus  where  such  defective  notice  was 
given  by  the  tenant  to  the  landlord,  and  the  latter,  after  re- 
ceiving the  notice,  in  order  to  induce  the  tenant  to  remain, 
offered  to  lower  the  rent  and  make  certain  repairs,  these 
facts  were  held  admissible  in  evidence  to  prove  the  land- 
lord's waiver  of  the  omissions  from  the  notice.^ 

§  648.  Waiver  of  Rights  Under  Notice. —  AVhen  notice 
has  been  given  by  either  the  landlord  or  the  tenant,  whether 
the  time  for  which  such  notice  is  given  has  expired  or  not, 
the  waiver  by  the  party  giving  the  notice  would  properly 

129  Car.  H.,  c.  3,  §3. 

2  Jolmstone  v.  Huddlestone,  4  B,  &  C,  932;  Doe  v.  Milward,  3  Mees. 
&Wels.,  328. 
SMollett  V.  Brayne,  2  Camp.,  103. 
*Boynton  v.  Bodwell,  113  Mass.,  531. 


364  NOTICE   BY   WHICH   LIABILITIES   EXTINGmSHED. 

be  styled  a  waiver  of  his  rights  under  the  same,  rather  than 
a  waiver  of  notice,  as  it  is  generally  termed.  This  right 
may  be  waived  b}^  either  party  so  as  to  perpetuate  the  ten- 
anc}^.  If  the  landlord  receive  rent  after  the  date  when 
the  tenant  is  notified  to  quit,  or  after  gi\'ing  such  notice 
in  advance  for  a  time  subsequent  to  the  designated  time  of 
quitting,  this  will  operate  conclusivel}"  upon  him  to  prevent 
the  enforcement  of  his  rights  to  immediate  possession.^ 
Upon  the  same  principle,  the  landlord's  distraining  for  rent, 
accrued  after  the  expiration  of  his  notice  to  quit,  will 
amount  to  a  waiver.^ 

§  64:9.  Will  Not  be  Presumed  from  Acceptance  of  Bent 
by  TTnautliorized  Person. —  But  where  the  tenancy  is  regu- 
larly terminated  by  notice  to  quit,  and  the  tenant  wilfully 
holds  over  without  the  permission  of  the  landlord,  express 
or  implied,  such  holding  over  wiR  not  prolong  the  tenancy.' 
And  though  such  permission  may  be  implied  from  a  receipt 
of  rent  after  such  notice,  where  the  rent  was  paid  to  one 
who  was  not  authorized  to  receive  it,  such  payment  would 
not  affect  the  rights  of  the  landlord,  although  such  person 
had  previously  been  accustomed  to  receive  rents  for  the 
landlord.*  ISTor  would  the  giving  of  a  second  notice  to 
quit,  after  the  expiration  of  the  time  limited  in  the  first, 
amount  to  a  waiver  of  the  party's  rights  under  the  notice.' 

§  650.  Mere  Permission  to  Remain  After  Notice  No 
Waiver. —  Mere  permission  of  the  landlord  for  the  tenant 
to  remain  for  a  time  after  notice  will  not  in  every  instance 
amount  to  a  waiver.  Thus  where,  after  notice,  the  landlord 
promised  the  tenant  that  he  need  not  remove,  unless  the 
premises  were  sold,  and  accordingly  permitted  him  to  re- 
main until  such  sale,  it  was  held  that  the  notice  was  not 
thereby  waived." 

1  Collins  V.  Canty,  6  Cush.,  415;  Prindle  v.  Anderson,  19  Wend.,  391; 
Goodright  v.  Cordwent,  6  T.  R.,  219. 
2Zoucli?j.  Willingale,  1  H.  Blackst.,  311. 
3Boggs  V.  Black,  1  Bin.,  333. 
*  Doe  V.  Calvert,  2  Camp.,  387. 
5  Messenger  v.  Armstrong,  IT,  E. ,  43. 
'  Whiteacre  v,  Symonds,  10  East,  13. 


CHAPTER  IX. 

PRINCIPAL  AND  AGENT. 

I.  Notice  of  Agexcy. 

II.  Notice  to  an  AGE>rr. 

III.  Notice  by  an  Agent. 

I.  Notice  of  Agency. 

§  651.  Principal's  Liability,  When  Agent  Exceeds  Authority. 

653.  Secret  Instructions  Will  Not  Limit. 

653.  Limited  by  Written  Authority. 

654.  Principal  Bound  by  Agent's  Representation. 

655.  Notice  of  Limitation  Should  be  Prior  to  the  Transaction. 

656.  Pi-incipal  Bound  by  Agent's  Acts  in  Excess  of  Authority  by 

Letter  of  Attorney. 

657.  Persons  Dealing  with  Agent  ]\Iust  Take  Notice  of  Contents  of 

Letter  of  Attorney. 

658.  Public  and  Private  Restriction  of  Authority. 

659.  Agent's  Authority  Limited  by  Law. 

660.  When  Parties  Bound  to  Inquire. 

661.  Illustration  Where  Authority  in  Writing. 

662.  Illustration  Where  Authority  by  Parol. 

663.  Difference  Between  General  and  Special  Agents. 

664.  Transactions  Requiring  Sciaitiny  of  Agent's  Authority. 

665.  Avoidance  of  Knowledge  of  Limitation  of  Agent's  Authority. 

666.  Agent  to  Negotiate  Bills  and  Notes. 

667.  Subsequent  Ratification. 

668.  Ratification  with  Notice  Binds  Principal. 

669.  Silent  Acquiescence  Will  Release  Agent. 

670.  Contract  in  Name  of  Agent  Binding. 

671.  Principal  Bound  Though  Agency  Concealed  or  Revoked  Without 

Notice  —  Husband  and  Wife. 
671a.  Ratification  of  Acts  After  Authority  Revoked. 

§  651.  Principal's  Liability,  When  Agent  Exceeds  Au- 
thority.—  The  full  measure  of  the  principal's  liability  for 
the  acts  of  the  agent  is  not  declared  in  the  rule  as  generally 
laid  down  —  that  the  principal  is  liable  for  the  acts  of  his 


366  PKINCIPAL   AND    AGENT. 

agent,  done  within  the  scope  of  his  authority.  One  dealing 
with  an  agent  is  not  always  fully  informed  of  the  extent  of 
such  agent's  authority,  and  when  his  want  of  knowledge  is 
not  the  result  of  laches,  or  voluntary  ignorance,  the  princi- 
pal may  be  bound,  though  the  agent  exceeds  his  authority. 
"When  the  apparent  authority  with  which  the  agent  is 
clothed  is  greater  than  was  intended  by  the  principal,  the 
liability  of  the  latter  for  unauthorized  acts  of  the  former 
arises  from  the  application  of  the  familiar  principle,  that 
where  one  of  two  innocent  parties  must  suffer  by  the  mis- 
conduct of  another,  it  should  be  the  one  who  has  placed  it 
within  the  power  of  the  other  to  perpetrate  the  wrong.' 

§  652.  Secret  Instructions  Will  Not  Limit. —  A  person 
dealing  with  an  agent  who  is  apparently  clothed  with  gen- 
eral powers  in  connection  with  the  subject-matter  of  the 
transaction  is  not  required  to  take  notice  of  private  or 
secret  instructions,  limiting  the  powers  of  such  agent,  nor 
is  he  put  upon  inquiry  in  regard  to  such  instructions,  so  long 
as  the  transactions  are  within  the  general  scope  of  the 
agent's  ostensible  powers.-  Accordingly,  when  the  author- 
ity of  an  agent,  authorized  to  sell  goods  on  commission,  was 
restricted  to  sales  for  cash,  of  which  restriction  a  common 
carrier  had  no  express  notice,  and  the  agent  exceeded  his 
authority  by  selling  on  credit,  the  carrier  was  not,  as  a  mat- 
ter of  law,  put  on  inquiry  by  the  initials  "  C.  O.  D."  marked 
on  the  package  delivered  to  the  customer,  and  was  hence 
not  liable  to  the  principal  for  failure  to  collect,  unless,  in 
the  opinion  of  the  jury,4:he  marks  on  the  package  amounted 
to  notice.  The  carrier  had  the  written  order  of  the  agent 
to  deliver  the  goods,  and  had  notice  of  the  agent's  authority 
to  sell,  and  whether  he  was  sufficiently  notified  of  the  restric- 
tion upon  this  authority  was  a  question  of  fact  for  the  jury.^ 

1  Ramsey  v.  Strobach,  52  Ala.,  513;  Calais  Steamboat  Co.  v.  Van  Pelt, 
2  Black,  372;  2  Kent's  Comm.,  620-21;  Story  on  Agency,  §  127. 

2  Andrews  v.  Kneeland,  6  Cow.,  354;  Beals  v.  Allen,  18  Johns.,  363; 
Pickering  v.  Busk,  15  East,  38. 

3DayUght  Burner  Co.  v.  Odlin,  51  N.  H.,  56;  13  Am.  R.,  45. 


NOTICE   OF   AGENCY.  367 

§  653.  Limited  by  Written  Authority.— When  notice 
of  the  authority  conferred  upon  an  agent  is  communicated 
by  a  letter  of  attorney,  letter  of  credit,  or  other  writing, 
the  course  to  be  pursued  by  persons  dealing  with  such  agent 
is  quite  clear.  The  full  extent  of  the  power  conferred  may 
be  looked  for  in  the  written  instrument.  By  it,  the  agent's 
authority  will  be  expressly  defined.  When,  however,  the 
principal  has  not  thus  expressly  defined  the  limits  of  the 
power  conferred  upon  his  representative,  the  extent  of  his 
authority  may  be  inferred  from  the  acts  of  both  principal 
and  agent.  ^  As  where  goods  were  bought  of  a  broker  to 
whose  name  they  had  been  transferred,  the  purchaser  would 
not  be  affected  by  secret  instructions  from  the  principal. 
Putting  the  goods  in  the  hands  of  one  whose  business  it 
was  to  sell,  amounted  to  an  implied  authority  to  sell  them.- 
So  where  the  equitable  owners  of  a  vessel  permitted  her  to 
be  held  in  the  name  of  another  as  legal  owner,  for  the  pur- 
pose of  making  a  sale,  a  purchaser  might  infer  from  such 
conduct,  even  where  he  had  notice  of  the  character  in  which 
the  legal  owner  held,  that  he  had  unlimited  authority  to 
dispose  of  the  vessel.  Such  purchaser  could  not  be  affected 
by  any  concealed  interest,  or  secret  instructions  from  the 
principal,  of  which  he  had  no  notice.  And  such  notice,  it 
was  held,  to  affect  him,  should  be  established  by  unequivo- 
cal proof,  where  the  fact  had  been  studiously  secreted  down 
to  the  time  of  sale.''  So  also  in  an  action  of  ass^nnpsit,  on 
a  warranty  by  a  servant  empowered  to  sell  a  horse,  the  de- 
fendant denied  the  authority  of  the  servant  to  make  the 
warranty.  It  was  held  by  Lord  Ellenborougk,  however, 
that  as  the  horse  was  intrusted  to  the  servant's  care  for 
the  express  purpose  of  selling  it,  the  inference  would  follow 

1  Perkins  u  Wash.  Ins.  Co.,  4  Cowen,  645;  Com.  Bank  Lake  Erie  v. 
Norton,  1  HiU,  501. 

2  Pickering  v.  Busk,  15  East,  38;  Wliitehead  v.  Tuckett,  id.,  400; 
Everett  v.  Saltus,  15  Wend.,  474;  Dyerr.  Pearson,  3  Baxn.  &  Cres.,  38; 
Sanford  v.  Handy,  23  Wend.,  260. 

3  Calais  Steamboat  Co.  v.  Van  Pelt,  2  Black,  372. 


3G81r  PKIXCIPAL   AND   AGENT. 

that  he  was  authorized  to  do  whatevei'  was  necessary  to 
effect  the  sale.^  So  where  an  agent  was  employed  to  obtain 
subscriptions  to  the  capital  of  a  joint  stock  company,  his 
principal  was  held  liable  for  his  false  representations,  be- 
cause to  make  representations  was  within  the  scope  of  his 
authority,  and  was  what  should  have  been  expected  from 
one  employed  in  that  capacity," 

§  654.  Principal  Bound  by  Agent's  Representation.— 
Where  representations  are  made  by  an  agent,  to  which  it  is 
sought  to  hold  the  principal,  the  privity  of  the  principal 
may  be  presumed  from  the  character  of  such  representa- 
tions, and  the  notoriety  with  which  they  are  made.  As  where 
the  agent  of  ship-owners  advertised  the  sailing  of  a  vessel, 
and  in  the  pubhc  advertisement  made  representations  as  to 
convoy,  etc.,  it  was  held  to  render  the  owners  privy  to  the 
representations  made,  and  consequently  bound  by  them.^ 

§  655.  Notice  of  Limitation  Should  be  Prior  to  the 
Transaction. —  Notice  of  the  agency,  and  of  its  special 
character,  must  come  to  the  person  dealing  with  the  agent 
lefore  the  transaction,  in  order  to  affect  such  person.  As 
where  one  borrowed  the  principal's  money  of  the  agent  for 
a  stipulated  time,  it  was  decided  that  he  could  hold  it  as 
against  the  principal,  notwithstanding  subsequent  notice  of 
the  agency,  and  that  in  loaning  the  money  the  agent  ex- 
ceeded his  authority.* 

§  656.  Principal  Bound  by  Agent's  Acts  in  Excess  of 
Authority  by  Letter  of  Attorney. —  Even  when  tlie  au- 
thority of  the  agent  is  expressly  Umited  in  the  written  in- 
strument to  which  persons  dealing  with  him  are  bound  to 
look  in  order  to  learn  that  he  has  any  power  whatever  to 

iHelgearr.  Hawke,  5  Esp.,  73. 

2Sandford  v.  Handy,  23  Wend.,  260. 

SRunquist  v.  Ditchell,  3  Esp.,. 64;  Hunter  v.  Hudson,  etc.,  Co.,  20 
Barb.,  493;  National  Ech.  Co.  v.  Drew,  32  Eng.  L.  &  Eq.,  1.  It  has  been 
held  however,  that  the  principal  will  not  be  held  where  he  did  not  direct 
the  representations  to  be  made.  Fuller  v.  Wilson,  3  Ad.  &  Ell.,  N.  S., 
629. 

*  Lime  Rock  Bank  v.  Plimpton,  17  Pick.,  159. 


KOTICE    OF    AGENCY.  300 

bind  his  piincipal,  he  may  overstep  the  limits  of  his  au- 
thority, and  bind  his  principal.  As  Avhere  an  agent  had 
been  sent  from  England  to  Peru,  with  a  Avritten  power  of 
attorney  to  purchase,  lease,  work,  etc.,  mining  claims  and 
mines  for  his  principal,  with  also  a  general  letter  of  credit 
authorizing  him  to  draw  upon  the  principal  to  the  extent  of 
£10,000.  After  drawing  the  amount  authorized  by  his  letter, 
he  gave  plaintiff  a  draft  for  £1,500  additional,  and  it  was 
held  that  the  plaintiff  miglit  infer  from  the  power  of  attorney 
that  the  agent  was  clothed  with  necessary  authority  to  carry 
out  the  extensive  enterprises  therein  mentioned,  and  even  if 
plaintiff  had  seen  the  letter  of  credit,  as  the  amount  already 
drawn  was  not  indorsed  thereon,  it  would  not  have  amounted 
to  notice  to  him  that  defendant's  agent  had  exceeded  the 
limits  of  his  authority.^  So  it  was  held  in  another  case,- 
that  the  conduct  and  admissions  of  the  agent  as  to  his  own 
interpretation  of  the  authority  conferred  upon  him  would 
justify  a  person  dealing  with  him  in  entering  into  contracts 
which  they  both  Jcnew  to  be  bej^ond  the  letter  of  the  agent's 
instructions.  The  authority  of  this  case  may  well  be  ques- 
tioned. The  agent  had  written  authority  from  his  principal 
to  purchase  grain  at  a  fixed  price.  The  written  authority 
was  communicated  to  the  seller  of  the  grain,  Avho  said 
"  There  must  be  some  mistake,"  and  sold  the  grain  to  the 
agent  on  account  of  his  principal,  at  a  price  in  advance  of 
that  which  the  agent  was  by  his  written  instructions  au- 
thorized to  contract  for.  In  an  action  to  recover  the  pur- 
chase price,  the  agent,  being  called  as  a  witness,  testified  on 
cross-examination  that  he  considered  himself  authorised  to 
pay  a  higher  price  than  that  mentioned  in  his  written  insti^uc- 
tions,  whereupon  the  court  declared  that  the  agent  "  admits 
he  did  not  consider  himself  as  bound  by  tiie  direction  in 
writing  of'  his  principal ;  he  considered  himself  at  liberty  to 
exceed  that  authority."  Therefore,  it  was  held,  his  principal 
was  bound.     Here  the  agent  who  had  exceeded  his  au- 

1  Withington  v.  HeiTing,  5  Bin^.,  443. 

2  Hicks  V.  Hankin,  4  Esp.,  114. 

34 


C70  PKINCIPAL   AND   AGENT. 

thority  in  order  to  justify  his  conduct  on  the  ground  of 
good  intentions  is  allowed  to  admit  away  his  principal's 
defense. 

§  657.  Persons  Dealing  with  Agent  Mnst  Take  Notice 
of  Contents  of  Letter  of  Attorney. —  The  correct  rule  is, 
that  when  an  agent  is  known  to  be  acting  under  written 
instructions,  those  having  dealings  with  him  should  look  to 
the  instrument  by  which  his  powers  are  conferred,  to  gain 
a  knowledge  of  the  extent  of  those  powers,  and  where  they 
neglect  to  examine  his  written  authorization,  they  are  none 
the  less  charged  with  notice  of  the  limitations  and  restric- 
tions therein  contained,  either  in  express  language  or  by 
necessary  implication.^  A  party  dealing  with  an  agent 
whose  authority  is  conferred  by  a  written  instrument  is 
bound  to  take  notice  of  its  legal  effect.^  It  was  accordingly 
held  as  the  general  words  in  a  power  of  attorney  would  not 
enlarge  the  scope  of  tlie  powers  therein  conferred,  beyond 
what  was  indicated  in  the  preceding  language,  that  notice 
must  be  taken  of  the  particular  words  by  which  such  pow- 
ers were  restricted.^ 

§  658.  Pnblic  and  Private  Restriction  of  Authority. — 
"When  the  limitation  on  the  authority  of  a  general  agent  js 
public,  every  one  must  regard  it.  But  if  it  be  private,  it 
must  be  brought  directly  to  the  notice  of  any  one  dealing 
with  him  in  that  capacity ;  otherwise  the  principal  will  be 
bound  by  transactions  beyond  the  limits  of  the  agency.* 

§  659.  Agent's  Authority  Limited  l)y  Law. —  Where  the 
limitations  upon  an  agent's  authority  are  fixed  by  law,  every 
one  is  bound  to  notice  them.  As  in  case  of  a  guardian  or 
curator  of  an  infant,  who  is  dealing  with  his  ward's  estate, 
any  one  who  is  a  party  to  such  a  transaction,  with  notice 
that  the  subject-matter  of  their  dealings  is  the  property  of 

iStainback  v.  Bank  of  Virginia,  11  Gratt.,  269;  Leverich  v.  Mayor  of 
New  York,  66  Barb.,  623. 
2Rossiter  v.  Rossiter,  8  Wend.,  494. 
3 See  Campbell  v.  Hastings,  29  Ark.,  512. 
*  Bryant  v.  Moore,  26  Me.,  84;  Johnson  v,  Jones,  4  Barb.,  369. 


NOTICE   OF   AGENCY.  371 

the  ward,  is  charged  ^vith  notice  of  the  statutor}^  limitations 
upon  the  power  of  the  guardian,  and  acts  at  his  peril.' 

§  660.  When  Parties  Bound  to  Inquire. —  When  the 
agent  acts  under  a  special  authority,  whether  written  or 
verbal,  those  dealing  with  him,  with  notice  of  the  nature 
and  character  of  such  agency,  are  bound  to  inquire  into  the 
extent  of  the  power  conferred  upon  such  agent."^ 

§  661.  Illustration  Where  Authority  in  Writing. —  The 
above  doctrine,  as  applied  to  agents  acting  under  written 
authority,  is  fairly  illustrated  by  the  case  of  Schimmelpenich 
1).  Bayard.'^  There  the  principal,  who  was  plaintiff  in  the 
action,  resided  abroad,  and  appointed  an  agent  in  this  coun- 
try, Avith  authority  to  purchase  certain  commodities  on  ac- 
count of  the  principal,  and,  for  the  purpose  of  facilitating 
the  business,  requested  defendant  to  indorse  drafts  drawn 
by  such  agent  on  the  principal,  to  an  amount  expressly  lim- 
ited in  the  letter  of  credit,  for  the  purpose  of  making  such 
purchases.  In  the  correspondence  between  plaintiff  and 
defendant  the  former  warned  the  latter  not  to  advance  any 
money  to  the  agent,  except  there  was  a  "  moral  certainty  " 
that  he  was  using  it  in  the  interest  of  his  principal.  Plaint- 
iff had  also  advised  defendant  to  take  the  agent's  bills  "  in 
the  persuasion  of  their  solidity,  and  of  the  reality  of  the 
transactions  on  which  they  were  issued."  Though  the  prin- 
cipal continued  to  receive  consignments,  and  honor  drafts 
somewhat  in  excess  of  the  amount  limited  in  the  letter  of 
credit,  and  in  his  correspondence  with  defendant  expressed 
confidence  in  the  integrity  of  the  agent,  he  was  held  not  to 
be  bound  by  excessive  drafts  drawn  by  the  agent  to  obtain 
money  for  his  own,  instead  of  the  principal's,  use. 

•Woods  V.  Boots,  60  Mo.,  546. 

2 Snow  V.  Perry,  9  Pick.,  542;  Dunning  v.  Smith,  3  Johns.  Ch.,  344; 
Hatch  V.  Taylor,  10  N.  H.,  547;  Towle  v.  Leavitt,  23  N.  H.,  36;  Schim- 
melpenich V.  Bayard,  1  Pet.,  264;  Gibson  v.  Colt,  7  Johns.,  390;  Stainor 
V.  Tyson,  3  Hill  (N.  Y.),  279;  North  River  Bank  v.  Aymar,  id.,  263; 
Molony  v.  Kernon,  2  Dr.  &  War. ,  40 ;  Kerr  v.  Lord  Dungannou,  1  Dr.  & 
War.,  509;  Att'y  Gen.  v.  Pargeter,  6  Beav.,  150. 

» 1  Pet.,  264. 


372  PKINCIPAL   AND   AGEISTT. 

§662.  Illustration  Where  Authority  by  Parol.— The 

case  of  Towle  v.  Leavitt  ^  is  an  example  of  the  operation  of 
this  rule  in  cases  where  the  authority  conferred  upon  the 
agent  is  not  reduced  to  writing.  Here,  the  principal  in- 
trusted a  phaeton  to  the  care  of  one  whose  general  business 
was  to  make  and  sell,  as  well  as  to  repair,  carriages,  etc., 
with  power  to  sell  the  phaeton,  but  for  not  less  than  $40. 
At  the  close  of  a  sale  of  some  of  his  own  property,  under  an 
attachment,  the  agent  offered  the  phaeton  at  auction,  and 
it  was  purchased  for  $17.  It  was  held  that  the  unusual 
manner  of  the  sale,  together  with  the  fact  that  it  was  a 
second-hand  vehicle,  such  as  it  was  not  the  business  of  the 
agent  to  sell,  were  sufficient  to  inform  the  purchaser  of  the 
special  character  of  the  agency,  and  put  him  upon  inquiry 
as  to  the  extent  of  the  agency ;  and  that,  as  such  inquiry 
would  have  led  to  the  knowledge  that  the  agent  was  not 
authorized  to  sell  at  auction,  or  for  a  less  sum  than  forty 
dollars,  the  principal  might  reclaim  his  property.  So  in  the 
case  of  Gibson  v.  Colt,-  it  was  decided  that  a  power  to  sell 
was  a  special  power,  so  far  as  concerned  any  transactions  or 
contracts  beyond  the  mere  selling.  That  it  did  not  include 
power  to  warrant.  In  this  case  the  master  of  a  vessel  was 
authorized  to  sell  in  the  same  manner  as  the  owners  might 
sell,  and,  upon  offering  the  vessel  to  the  purchasers,  made 
false  representations  as  to  her  registr}'-,  and  the  court  held 
that  the  owners  were  not  bound  by  such  representations,  as 
the  purchaser  was  charged  with  notice  of  the  powers  with 
which  the  agent  was  clothed,  and  that  such  representations 
were  in  excess  of  such  powers.  There  is  an  apparent  con- 
flict between  this  case  and  that  of  Helyear  v.  Hawke,^  which 

123N.  H.,  36. 

27  Johns.,  390.  See,  also,  Edwards  v.  Thomas,  2  Mo,  App.,  282; 
Clerks'  Sav.  Bank  v.  Thomas,  id.,  367,  where  it  was  held  that  the  indorser 
of  negotiable  paper,  indorsed  by  an  agent,  for  the  benefit  of  one  other 
than  his  principal,  knowing  it  to  be  accommodation  paper,  was  put  upon 
inquiry  as  to  the  authority  of  the  agent  to  bind  his  principal  by  the  in- 
dorsement. 

35  Esp.,72.  See,  also,  Bronson  v.  Ooflin,  118  Mass.,  156;  Wicks  v. 
Hatch,  63  N.  Y.,  585. 


NOTICE   OF   AGENCY.  373 

can  only  be  reconciled,  if  at  all,  upon  the  ground  that  in  the 
English  case  selling  was  the  business  in  which  the  owners 
were  engaged,  and  the  agency  was  general  for  that  purpose, 
while  in  the  American  case  the  selling  of  the  vessel  was  a 
departure  from  the  general  business  of  both  owner  and 
master,  and  hence  the  agency  for  that  purpose  was  strictly 
special, 

§  663.  Difference  Between  General  and  Special  Agents. 
To  determine  the  extent  to  which  purchasers  from  agents 
are  charged  with  notice  of  limitations  upon  their  powers, 
it  is  necessary  to  keep  constantly  in  view  the  distinction 
between  those  who  act  under  general  authority  and  those 
clothed  by  the  principal  with  special  powers.  In  deahng 
with  one  of  the  former,  the  principal  is  bound  by  every- 
thing done  within  the  general  scope  of  his  authority,  until 
the  person  dealing  with  him  has  been  notified  of  a  revoca- 
tion of  his  authority ;  while,  Avhere  the  agent  is  exercising 
powers  specially  conferred,  every  act  is  void,  so  far  as  it 
affects  the  principal,  which  is  not  in  strict  conformity  with 
his  instructions.^ 

§  664.  Transactions  Requiring  Scrutiny  of  Agent's 
Authority. —  Where  the  agent  professes  to  act  under  and 
by  virtue  of  authority  specially  conferred,  the  duty  of  the 
person  dealing  with  him  is  quite  plain  so  far  as  concerns  in- 
quiry into  the  extent  of  such  special  authority.  But  con- 
troversies quite  frequently  arise  from  a  misconception  of 
this  matter,  by  the  agent,  the  person  dealing  with  him,  or 
by  the  principal.  The  two  former  are  hable  to  be  misled 
by  the  general  language  of  a  letter  of  attorney,  given  for  a 
special  imrpose?  The  latter  may  incur  liability  by  appar- 
ently investing  his  representative  with  larger  powers  than 
he  really  intended.^*  There  are,  however,  certain  transac- 
tions which,  by  their  very  nature,  should  excite  caution  upon 

1  Allen  V.  Ogden,  1  Wash.  C.  Ct.,  174;  Munn  v.  Commission  Co.,  15 
Johns.,  44;  Nixon  v.  Palmer,  8  N.  Y.,  398. 

2  See  supra,  §  657. 

3  See  supra,  §  656. 


374  PKINCIPAL   AND   AGENT. 

the  part  of  one  dealing  with  an  agent,  and  lead  to  careful 
scrutiny  and  inquiry.  Such,  for  example,  is  the  acceptance 
of  hills,  and  th^  execution  of  promissory  notes,  by  one  as  the 
agent  of  another.  Here  the  agency  is  apparent  on  the  face 
of  the  transaction,  and  as  these  are  powers  which  are  exer- 
cised almost  invariably  under  special  authority,  it  behooves 
the  holder  of  the  note,  or  the  party  accepting  the  bill,  to 
look  well  to  the  extent  of  the  agent's  powers.^  In  the  case 
cited  the  agent  acted  under  two  letters  of  attorney,  by  one 
of  which  he  was  authorized  to  do  certain  acts,  among  others 
to  indorse  bills  for  and  in  the  name  and  to  the  use  of  his 
principal.  This  it  was  held  only  authorized  acts  for  the  de- 
fendant's sole  use,  and  not  for  a  copartnership  of  which  he 
Avas  a  member.  And  though  there  were  general  words  in 
the  instrument,  as  the  power  to  accept  bills  was  not  in- 
cluded among  those  enumerated,  it  could  not  have  been 
intended.  The  other  letter  gave  express  authority  to  ac- 
cept for  the  defendant,  and  on  his  behalf,  bills  drawn  by 
his  agents.  This  was  held  not  to  include  partnership  paper 
drawn  by  one  of  his  partners.  This  was  the  legal  construc- 
tion put  upon  these  powers  of  attorney,  and  so  they  should 
have  been  taken  notice  of  by  the  plaintiff.' 

§  665.  Avoidance  of  Knowledge  of  Limitation  of 
Agent's  Authority. —  One  dealing  in  good  faith  with  an 
agent,  upon  the  strength  of  his  apparent  authority,  and 
where  the  matter  seems  within  the  general  scope  of  the 
powers  usually  conferred  upon  such  agents,  may  be  excused 
from  that  close  scrutiny  into  the  nature  and  extent  of  the 
agent's  authority  that  would  be  required  at  the  hands  of  one 
who  manifestly  sought  an  unfair  advantage.  As  where  a 
shipper  of  goods  had  received  a  proportion  from  the  owners 
of  a  vessel  for  the  carrying  of  certain  articles  of  merchan- 
dise at  certain  rates.  The  shipper  had  a  personal  interview 
with  the  owners  and  endeavored  to  obtain  a  contract  for  the 

J  Atwood  V.  Munning,  7  Barn.  &  Ores.,  278.    See,  also,  Spooner  v. 
Thompson,  48  Vt.,  259. 
2  See  supra,  §  657. 


NOTICE   OF    AGENCY.  375 

transportation  of  the  goods  at  reduced  rates,  but  failed  in 
obtaining  the  concession.  Subsequently  he  saw  their  agent, 
and,  concealing  the  fact  of  his  interview  with  the  principals, 
obtained  a  written  contract  from  him  upon  more  favorable 
terms  than  the  owners  would  agree  to.  The  vessel  was  ac- 
cordingly laden,  and  the  captain,  supposing  the  contract  to 
be  binding,  signed  bills  of  lading  in  conformity  therewith. 
It  was  held  that  as  the  shipper  had  reason  to  know  that  the 
agent's  authority  Avas  limited,  he  would  be  charged  with 
notice  of  that  fact,  and  consequently  the  owners  were  not 
bound  by  the  action  of  either  of  tiieir  agents  Avho  exceeded 
their  authority,  and  could  command  the  regular  and  custom- 
ary price  for  the  carriage.^ 

§  66G.  Agent  to  Negotiate  Bills  and  Notes. —  An  agent 
who  is  intrusted  with  the  disposal  of  negotiable  instruments 
is  usually,  to  all  appearance,  the  regular  holder.  And  when 
he  disposes  of  such  paper  by  sale,  pledge  or  otherwise,  con- 
trary to  the  orders  of  his  principal,  to  a  hona  fide  purchaser 
without  notice,  the  principal  will  be  bound  by  the  transac- 
tion, though  the  holder  took  them  without  any  inquiry  at  all ; 
"  for  it  is  said  that  the  title  of  the  holder,  in  case  of  nego- 
tiable instruments,  is  derived  from  the  instrument  itself,  and 
not  from  the  title  Avhich  the  party  has  from  whom  he  re- 
ceived them."  - 

§  667.  Subsequent  Ratification. —  Even  where  the  rela- 
tion of  principal  and  agent  does  not  exist,  either  in  fact  or 
appearance,  at  the  time  of  the  contract,  under  certain  cir- 
cumstances, the  obligation  may  be  rendered  binding  upon 
the  principal  by  subsequent  ratilication ;  but  here  the  law  of 
notice  comes  into  operation  as  affecting  the  principal.  For 
the  ratification  of  the  acts  of  one  falsely  assuming  to  act  as 
the  agent  of  another,  in  order  to  be  effectual,  must  be  with 
a  full  knowledge  of  the  circumstances.* 

1  Barnard  v.  Wheeler,  24  Me.,  412. 

-'Bay  V.  Coddington,  5  Johns.  Ch.,  54;  S.  C,  20  Johns.,  637;  Story  on 
Agency,  §  228. 
■i  NLxon  V.  Pahner,  8  N.  Y,,  398. 


376  PRINCIPAL    AND    AGENT. 

§  G6S.  Ratification  with  Notice  Binds  Principal. —  But 

where  the  principal  has  been,  duly  notified  of  the  acts  of  his 
pretended  agent,  he  may,  not  only  by  express  approval,  but 
by  his  conduct  in  accepting  the  benefits  to  be  derived  from 
the  transaction,  or  by  protracted  silent  acquiescence,  estop 
himself  from  evading  its  attendant  liabilities;  for  it  is  the 
duty  of  such  an  involuntary  party  to  a  contract,  as  soon  as 
he  is  notified  thereof,  to  signify  his  disapproval  without  un- 
necessary dela}?'  by  giving  notice  to  the  other  party.^  And 
if  the  transaction  which  he  proposes  to  repudiate  consists 
of  a  purchase  of  goods  in  his  behalf,  he  should  return  the 
goods,  and  this  notice  of  disapproval,  and  restitution  should 
take  place  with  equal  promptness,  whether  he  seeks  to  deny 
the  agency  itself,  or  only  claims  that  the  agent  has  ex- 
ceeded his  authority.^ 

§  66y.  Silent  Acquiescence  Will  Release  Agent. —  It  is 
also  held  in  the  case  last  cited  that  the  silent  acquiescence 
of  the  principal  after  notice  will  release  the  agent  from  fia- 
bility  for  disobeying  instructions.  So,  where  an  action  was 
brought  against  a  naval  commander,  for  his  acts  in  a  public 
capacity,  in  excess  of  the  authority  conferred  by  his  instruc- 
tions, it  was  held  that  the  approval  of  his  government,  after 
due  notice  of  the  circumstances,  rendered  it  the  act  of  gov- 
ernment, and  the  public  agent  could  not  be  held  civilly  liable 
to  one  injured  b}^  such  acts.^  But  the  mere  fact  of  ratifica- 
tion of  a  single  transaction  as  purchasing  agent  will  not 
justify  persons  in  giving  him  credit  as  such,  fifteen  months 
afterwards,  when  he  pretends  to  be  acting  for  the  same 
principal.^ 

§  670.  Contract  in  TVame  of  Agent  Binding. —  Where 
one  has  dealings  with  an  agent,  knowing  him  to  be  acting 

1  SummerviUe  v.  Hannibal  &  St.  J.  R.  R.  Co.,  62  Mo.,  391 ;  Home  Life 
Ins.  Co.  V.  Pierce,  75  111.,  426;  Henderhen  v.  Cook,  66  Barb.,  21. 

2  Johnson  v.  Jones,  4  Barb.,  369;  Bray  v.  Gunn,  53  Ga.,  144. 
SBuron  v.  Denman,  2  Exch.,  167. 

*Cupples  V.  Whelan,  61  Mo.,  583.  See,  also,  Everett  v.  Saltus,  It 
Wend.,  474. 


NOTICE   OF   AGENCY.  377 

in  that  capacity,  the  contract  entered  into  between  them 
will  not  only  bind  the  principal,  but  will  bind  the  other 
party  to  the  principal,  though  the  transaction  is  in  the  name 
of  the  agent.^  In  tliis  case  a  marine  policy  of  insurance 
was  taken  out  in  the  name  of  the  agent,  with  notice  to  the 
insurer  that  it  was  for  the  principal's  benefit,  and  the  com- 
pany was  not  allowed  to  reduce  the  amount  of  the  claim 
for  loss  by  set-off  of  a  debt  against  the  agent  personally ; 
though  the  premium  note  given  by  the  agent  in  his  own 
name  was  deducted  as  being  the  debt  of  the  principal. 

§  671.  Principal  Baiiml  Though  Agency  Concealed,  or 
Revoked  Without  Notice  —  Husband  and  Wife. —  A  con- 
tract made  by  an  agent  for  his  principal  may  bind  the 
principal  though  at  the  time  the  other  contracting  party 
may  have  no  notice  of  the  agency,  and  believe  the  agent  to 
be  the  real  party  with  whom  he  is  contracting;-  though 
in  case  of  a  concealed  agency,  a  subsequent  disclosure  does 
not  deprive  the  other  party  of  his  right  of  action  against 
the  agent,  who  concealed  the  name  of  his  principal.  An 
action  may  be  maintained  against  the  principal  because  he 
received  the  benefit  of  the  contract,  and  against  the  agent 
because  it  was  to  him  the  credit  was  given,  on  his  own  rep- 
resentations ;  but  there  can  only  be  one  satisfaction.^  And 
where  a  pre\'iousl3^  subsisting  agency  has  been  revoked 
without  notice  to  the  party  accustomed  to  have  dealings 
with  the  principal  through  such  agent,  the  liability  of  the 
principal  will  attach  to  all  transactions  in  the  name  of  the 
principal,  within  the  apparent  scope  of  the  agent's  author- 
ity mitil  notice  of  revocation.*  The  principal's  estate  has 
also  been  held  when  such  agency  was  revoked  by  his  own 
death,  and  the  transactions  occurred  in  good  faith  before 

1  Hulbert  v.  Pacific  Insurance  Co.,  2  Sumn.,  471. 

2Ingelhart  v.  Thousand  Island  Hotel  Co.,  14  N.  Y.  Sup.  Ct.,  547. 

SBeymer  v.  Bonsall,  79  Pa.  St.,  298. 

^Clafflin  V.  Lenheim,  66  N.  Y.,  301;  McNeilly  v.  Continental  Life  Ins. 
Co.,  id.,  23;  Spencer  v.  Wilson,  4  Munf.,  130;  Morgan  v.  Stell,  5  Binn., 
305;  Beard  v.  Kirk,  11  N.  H.,  397. 


378  PKmCIPAL  AND   AGENT. 

notice  of  such  death  either  to  the  agent  or  the  other  party .^ 
But  under  a  similar  state  of  facts,  such  transactions  were 
held  void  though  made  in  good  faith  and  in  ignorance  of 
the  principal's  death.^  The  doctrine  of  agency  has  been 
applied  to  the  relation  of  husband  and  wife,  in  order  to  ac- 
count for  the  former's  liability  for  the  latter's  contracts,  and 
hence  the  acts  which  amount  to  a  revocation  of  such  agency, 
and  what  is  notice  of  such  revocation  to  those  giving  her 
credit.  The  learning  heretofore  laboriously  expended  in 
that  direction  has  seemed  to  involve  itself  in  such  incon- 
sistencies, that  it  may  now  well  be  doubted  whether  the 
husband's  liability  for  the  debts  contracted  by  his  wife  rests 
upon  the  doctrine  of  implied  agency.  Where  it  is  so  held, 
however,  such  agency  is  considered  as  revoked  by  the  wife's 
abandonment  of  her  husband's  bed  and  board,  especiall}'^ 
where  she  is  living  in  adultery  with  another,  and  her  noto- 
riously living  apart  is  regarded  as  notice  of  the  revocation 
of  the  agency.^  But,  on  the  other  hand,  if  he  puts  her 
away,  or  her  desertion  of  him  is  because  of  his  adultery,  he 
still  remains  liable  as  before,  notwithstanding  the  fact  that 
he  gives  express  notice  to  those  who  supply  her  wants,  not 
to  give  her  credit  on  his  account,'* 

§  671a.  Ratification  of  Acts  After  Authority  Revoked. 
As  already  stated,  there  are  circumstances  under  which  the 
principal  Avill  be  held  liable  for  the  acts  of  his  agent  in 
excess  of  his  authority  conferred  by  letters  of  attorney.^ 
But  persons  dealing  with  an  agent  so  authorized  must  take 
notice  of  the  contents  of  the  instrument  b}'-  which  the 
power  is  conferred,"  and  when  such  powers  are  exceeded 

1  Cassiday  v.  McKenzie,  4  W.  &  S.,  283;  Smout  v.  Ilbery,  10  M.  &  W., 
1 ;  Watson  v.  King,  4  Camp. ,  273. 

2  Rigs  V.  Cage,  8  Humph.  (Tenn.),  350. 

3 Brown  v.  Patton,  3  Humph.  (Tenn.),  135;  Baker  v.  Barney,  8  Johns., 
73;  Robison  v.  Goswold,  6  Mod.,  171;  Caney  v.  Patton,  2  Ashm.  (Penn.), 
140;  Hunter  v.  Boucher,  3  Pick.,  289:  Morris  v.  Martin,  1  Str.,  647; 
Manwairing -y.  Sands,  id.,  706;  McCutchen  v.  McGahay,  11  Johns.,  281. 

^Sj'kes  V.  Halstead,  1  Sandf.,  483;  Etherington  v.  Parrot,  1  Salk.,  118. 

5  Supra,  §  656. 

6  Supra,  §  657. 


NOTICE   OF   AGENCY.  379 

the  principal  will  not  be  bound  unless  he  subsequently  rati- 
fies the  acts  of  his  agent,  Avith  notice  of  the  excess  of 
authority.'  Examples  are  given  in  the  sections  cited  of  rati- 
fication by  which  the  principal  will  be  bound.  But  when 
the  principal  authorized  his  clerk  to  draw  checks  against 
the  former's  bank  account,  and  such  authority  was  con- 
ferred by  power  of  attorney  in  which  the  period  for  which 
the  clerk  was  empowered  to  act  was  limited  to  fifteen  days, 
it  was  held  that  the  principal  could  not  be  bound  by  checks 
drawn  by  the  agent  after  that  time,  notwithstanding  the 
fact  that  the  bank-book  was  written  up  several  times  in  the 
mean  time,  without  the  principal's  knowledge  —  the  book 
being  in  the  hands  of  the  clerk.-  But  where  an  agent  ex- 
ceeded his  authority  by  procming  a  promissory  note  for 
his  principal  for  which  he  receipted  in  the  principal's  name, 
agreeing  that  the  note  should  be  taken  care  of  at  maturity, 
aU  of  which  was  unauthorized,  the  principal  was  held  to 
have  ratified  the  contract,  by  using  the  note  in  his  business.^ 

1  Supra,  §§  667,  668,  669. 

2  Manufacturers'  Nat.  Bank  v.  Barnes,  65  111.,  69;  16  Am.  Rep.,  576. 
SMundorff  v.  Wickersham,  63  Pa.  St.,  87;  3  Am.  Rep.,  531. 


.^89  rEINCIPAL    AND   AGENT. 


II.  Notice  to  an  Agent. 

§  672.    Notice  to  Agent  is  Notice  to  Pi-incipal. 

673.  General  Application  of  the  Rule. 

673a.  The  Effect  "VVliere  Actual  Notice  Essential. 

674.  Effect  of  Notice  Depends  Upon  Nature  of  Agency. 

675.  Executive  Officer  of  a  Bank. 

676.  Notice  to  Trustees. 

677.  Bound  by  Agent's  Unlawful  Acts. 

678.  Person  Misled  by  Acts  of  Principal. 

679.  Wife  Affected  with  Husband's  Knowledge. 

680.  Confined  to  Transactions  in  "Which  He  is  Active. 

681.  Notice  to  One  of  Several  Agents  Sufficient. 

682.  Director  of  a  Bank. 

683.  Corporation  Not  Affected  with  Every  Fact  Known  to  Directors. 
683a.  Notice  to  Du-ectors  of  Corporation. 

688&.  Notice  to  Corporations  Thi-ough  Their  Executive  Officers. 

684.  Joint  Pui'chasers  Not  Principal  and  Agent. 

685.  The  Same  Kind  of  Notice  to  Principal  as  to  Agent. 

686.  To  Agent  of  Agent  Not  Sufficient. 

687.  Place,  Manner  and  Time  of  Acquiring  Knowledge. 

688.  Same  —  When  to  be  Considered. 

689.  Knowledge  Acquu-ed  Dm-ing  Agency. 

690.  Agent's  Duty  to  Communicate. 

691.  Where  Agent's  Authority  Depends  Upon  Ratification. 

692.  Notice  to  Attorneys  —  Breach  of  Confidence  to  Disclose. 

693.  Executor  and  Administrator. 

694.  Knowledge  of  Trustee  Before  Creation  of  the  Trust. 

695.  Notice  of  Torts  of  Agents  and  Servants. 

§  672.  Notice  to  Agent  is  Notice  to  Principal. —  The 

rule  of  law  that  charges  the  principal  with  notice  of  every 
fact  coming  to  the  knowledge  of  his  agent,  which  is  con- 
nected with  the  business  in  which  the  agent  is  employed, 
may  be  tersely  expressed  thus :  Notice  to  cm  agent  is  notice 
to  the  principal}  It  is  generally  regarded  as  constructive 
notice  to  the  principal ;  but  it  is  at  least  doubtful  whether 

1  Astor  V.  Wells,  4  Wheat.,  466;  Bracken  v.  Miller,  4  W.  &  S.,  102; 
Reed's  Appeal,  34  Pa.  St.,  207;  Mechanics' Bank  v.  Seton,  1  Pet. ,  309 ;  Jack- 
son V.  Sharp,  9  Johns.,  163;  Jackson  v.  Winslow,  9  Cow.,  13;  Jackson 
V.  Leek,  19  Wend.,  339;  Bank  of  U.  S.  v.  Davis,  2  Hill,  451;  Fuller  v. 
Bennett,  2  Hare,  402;  Sheldon  v.  Cox,  2  Eden,  224;  Sterling  Bridge  Co, 
V.  Baker,  75  lU.,  139. 


NOTICE   TO   AN   AGENT.  381 

this  is  a  correct  use  of  the  word  "  constructive,"  as  applied 
to  the  law  of  notice;^  To  employ  it  in  this  connection  is 
only  to  introduce  confusion  in  legal  terminology,  by  giving 
to  a  Avord  a  peculiar  signification,  where  it  has  quite  a  dif- 
ferent one  when  applied  to  other  branches  of  the  same  sub- 
ject. To  qualify  in  this  manner  the  notice  which  is  given 
through  an  agent  would  be  to  cut  off  entirely  from  the 
possibility  of  notice  a  large  class  of  purchasers  in  cases  re- 
quiring actual  notice.  Corporations  can  only  act  through 
agents,  in  the  transaction  of  their  business,  and  there  are 
matters,  of  which,  to  affect  them,  they,  as  well  as  individ- 
uals, must  have  actual  notice,  as  in  case  of  equities  affect- 
ing negotiable  instruments,  or  secret  trusts  affecting  the 
title  to  lands  purchased,  by  the  party  to  be  charged  with 
notice.^  AVhether,  therefore,  the  notice  by  which  the  prin- 
cipal is  to  be  affected  is  actual  or  constructive  depends  upon 
the  manner  in  which  it  is  brouoht  home  to  the  agent.  If 
the  agent  has  actual  notice,  the  principal  is  charged  with 
notice  of  the  same  kind.  If  the  agent  is  constructively 
notified,  so  is  the  principal.'  But  if  we  wish  to  state  the 
rule  with  greater  accuracy,  its  true  meaning  may  be  given 
by  stating  it  as  it  is  universally  understood,  that  notice  to 
an  agent  is  equivalent  to  notice  to  the  principal. 

§  673.  General  Application  of  the  Rule. —  "Xotice  to 
an  agent  is  constructive  jiotice  to  the  principal"  is  one 
of   those   enunciations   of  doctrine  which   is   so   modified 

1  See  Saffron,  etc.,  v.  Rayner,  L.  R.,  14  Ch.  Div.,  406;  Ex  parte  Larkin, 
id.,  566;  Boui-sot  v.  Savage,  L.  R.,  3  Eq.,  134;  Atterbu^v  v.  Wallis,  8 
DeG.,  M.  &  G.,  454;  Timstall  v.  Trapps,  3  Sim.,  301 ;  Ncwstead  r.  Searlos, 
1  Atk.,  265;  Suit  v.  Woodhall,  113  Mass..  391;  Owens  v.  Roberts,  36 
Wis.,  258;  DistiUed  Spirits,  11  Wall.,  356;  Westervelt  v.  Haff,  2  Sandf. 
Ch.,  98;  Hovey  v.  Blanchard,  13  N.  H.,  145;  Ames  v.  N.  Y.  Union  Ins. 
Co.,  14  N,  Y.,  253;  Russell  v.  Sweezey,  22  Mich.,  235;  Smith  v.  Denton, 
42  Iowa.,  48 ;  First  National  Bank  of  Milford  v.  Town  of  Jlilford,  36 
Conn,,  93;  Fogg  v.  Tenn.  National  Bank,  9  Heisk.,  479;  Farrington  v. 
Woodward,  82  Pa.  St.,  259;  Wood  r.  Wan-en,  82  N.  Y.,  265;  ante,  ch. 
I,  Constructive  Notice. 

■i  Bracken  v.  Miller,  4  W.  &  S.,  102.     See  ante,  %  31  et  seq. 

8  Jones  V.  Bamford,  21  Iowa,  217;  RoUand  v.  Hart,  L.  R.,  6  Ch.,  678. 


382  PKINCIPAL   AND   AGENT. 

in  its  application  to  different  cases  as  to  raise  a  doubt 
whether,  in  the  form  in  wliich  it  is  usually  expressed^ 
it  may  fairly  be  designated  as  a  rule.  It  is  true  that,  for 
all  the  purposes  of  the  business  to  which  the  agency  applies, 
the  agent  stands  in  the  place  and  stead  of  the  principal,  and 
the  Icnowledge  which  he  acquires,  in  connection  with  the 
particular  business  of  the  principal,  in  which  such  agent  is 
engaged  at  the  time,  will  be  imputed  to  the  principal,  whether 
in  fact  communicated  or  not.' 

§  673a.  The  Effect  Where  Actual  Notice  Essential.— 
There  is  no  serious  objection  to  the  statement  that  notice  to 
an  agent  is  constructive  notice  to  the  principal,  provided  it 
is  not  taken  to  mean  that  it  is  only  constructive  notice,  and 
falls  short  of  actual  notice,  where  actual  notice  is  essential. 
The  distinction  between  constructive  and  actual  notice  has 
been  commented  on  in  a  former  chapter.-  We  have  there 
seen  that  there  are  circumstances  under  which  notice  which 
is  merely  a  legal  inference  will  not  bind,  for  the  reason  that 
the  statute  declares  that  only  actual  notice  will  suifice.^  It 
is  also  true  that  a  purchaser  for  value  of  negotiable  paper, 
in  the  ordinar}^  course  of  business,  before  maturity,  can  only 
be  affected  with  knowledge  of  defenses  existing  in  favor  of 
the  maker,  by  actual  notice.*  But  it  is  not  intended  in  such 
cases  to  exclude  notice  to  agents.  If  actual  notice  is  com- 
municated to  an  agent  of  the  party  to  be  bound,  under 
circumstances  that  would  render  such  notice  binding  upon 
the  principal  for  any  purpose,  it  will  be  binding  as  actual 
notice.^    The  reason  Avliy  notice  to  the  agent  will  bind  the 

'  Whitehead  v.  Wells,  29  Ark. ,  99.  Notice  to  the  local  agent  of  an  in- 
surance companj'',  in  connection  with  the  risk  assumed  on  belialf  of  the 
company,  is  notice  to  his  principal.  Coolidge  v.  Charter  Oak  Life  Ins. 
Co..  1  Mo.  App.,  109;  Holden  v.  N.  Y.  &  Erie  Bank,  6  Reporter,  692;  72 
N.  Y.,  286. 

"^  Ante,  oh.  I. 

'Musgrove  v.  Bonser,  5  Ore.,  313;  Barnes  v.  McClinton,  3  Pa.,  67; 
Hastings  v.  Cutler,  24  N.  H.,  481;  Maupin  v.  Emmons,  47  Mo.,  304; 
Roberts  v.  Mosley,  64  Mo.,  507. 

*  Goodman  v.  Simonds,  20  How.,  343;  ante,  §  80,  and  cases  cited. 

5  Stanley  v.  Chamberlain,  39  N.  J.  L.,  565. 


NOTICE   TO   AN   AGENT. 


383 


principal  is  that  for  the  purposes  of  the  transaction  the  two 
are  identical.^ 

§  674.  Effect  of  Notice  Depends  Upon  Nature  of 
Agency. —  As  we  have  seen  in  the  next  preceding  title,  that 
whether  the  principal  is  bound  by  contracts  entered  into  by 
the  agent  depends  upon  the  nature  and  extent  of  the  agency, 
so  does  the  effect  upon  the  principal,  of  notice  to  the  agent, 
depend  upon  the  same  conditions.  And  the  great  variety 
of  circumstances  affecting  the  relation  of  principal  and 
agent,  with  respect  to  tlie  matter  under  consideration,  ren- 
ders it  exceedingly  difficult  to  arrange  them  under  the 
two  heads  of  agents  with  general,  and  agents  with  special, 
powers.  For  Avliether  the  agent  be  one  exercising  general 
or  special  authority,  it  is  quite  certain  that  liis  agency  must 
have  some  direct  connection  with  the  matter  with  reference 
to  which  notice  is  given.-  As,  where  one  wlio  was  the  agenf^ 
of  a  railroad  company,  and  residing  in  the  state  of  Iowa, 
became  cognizant  of  the  fact  that  tliere  were  two  towns  of 
the  same  name  in  that  state,  and  another  agent  of  the  same 
company,  who  resided  in  Illinois,  being  ignorant  of  that 
fact,  shipped  goods  belonging  to  plaintiff  to  one  of  such 
towns,  whicli  was  the  only  one  he  knew  of,  but  which  proved 
not  to  be  the  one  intended  by  the  consignor,  it  was  held  that 
the  company  Avas  not  to  be  charged  with  notice,  by  reason 
of  the  knowledge  of  its  Iowa  agent,  that  there  were  two 
towns  of  the  same  name,  so  as  to  render  it  liable  for  the 

iSee  Hart  v.  Farmers',  etc.,  Bank,  33  Vt.,  253;  Porter  v.  Bank  of  Rut- 
land, 19Vt.,425. 

2Blunienthal  v.  Brainard,  38  Vt.,  402;  Haywood  v.  National  Ins.  Co., 
53  Mo.,  181;  Warwick  v.  Warwick,  3  Atk.,  294;  Mechanic-s'  Bank  v. 
Shaumburg,  38  Mo.,  228;  Lloyd  v.  Atwood,  3  De  G.  &  J.,  (514;  Finch  v. 
Shaw,  19  Beav.,  500 ;  Tybee v.  Webb,  6  Beav.,  552 ;  Abell  v.  Howe,  43  Vt., 
403;  Hart  v.  Fann.  &  Mech.  Bank,  33  Vt.,  252;  Lawrence  v.  Tncker,  7 
Greenl.,  195 ;  Hood  v.  Fahnestock,  8  Watts,  489 ;  Bracken  r.  Miller,  4  W. 
&  S.,  102;  Allen  v.  Poole,  54  Miss.,  323;  McCormack  v.  Wheeler,  36  111., 
114;  Pringle  V.  Dunn.  37  Wis.,  449;  Roach  v.  KaiT,  18  Kan.,  529;  Smith 
V.  Denton,  42  Iowa,  48;  Russell  v.  Sweezy,  33  Mich.,  235;  Holdenv.  N. 
Y.  &  Erie  Bank,  72  N.  Y,,  286;  Bierce  v.  Red  Bluff  Hotel  Co.,  31  Cal., 
160. 


]  l^^u/jf  /u 


384  PKINCIPAL   AND   AGENT. 

act  of  their  Illinois  agent,  as  for  negligence.'  The  agency 
may  be  express  or  implied.-  But  to  bind  the  two  parties  by 
the  acts  of  an  attorney,  the  agency  for  both  is  not  imphed 
from  the  fact  that  but  one  attorney  is  employed.^ 

§  675.  Executive  Officer  of  a  Bank. —  Where  the  cashier 
of  a  bank  was  ex  officio  a  member  of  the  discount  commit- 
0       tee,  in  the  absence  of  evidence  to  the  contrary,  ^le  was  pre- 
hA^'j^    t       sumed  to  have  been  present  at  the   dehberations   of   the 
^(P^l  committee  in  reference  to  a  bill  presented  for  discount Jand 

any  knowledge  which  he  may  have  had  of  equities  subsist- 
ino-  against  such  bill  was  held  sufficient  to  charge  the  bank 
with  notice  thereof.^  It  is,  however,  unnecessary,  in  general, 
to  find  these  collateral  circumstances,  either  as  legal  pre- 
sumptions or  as  facts  established  by  evidence,  in  order  to 
?  charge  a  banking  corporation  with  notice  of  equities  against 
paper  discounted  in  the  course  of  its  business,  when  the 
president,  cashier,  or  other  executive  officer  has  knowledge 
of  such  equities.^  In  the  case  last  cited,  the  cashier  of  the 
bank  was  also  treasurer  of  the  town.     Acting  as  such  treas- 

1  Congar  v.  C.  &  N.  W.  E.  E.  Co.,  24  Wis.,  157.  Notice  to  a  "  caller  " 
whose  duty  it  was  to  call  conductors  as  they  appeared  on  the  list  was 
not  notice  to  the  company  of  the  incompetency  of  a  particular  conductor 
on  such  hst.  Tlie  notice  to  bind  the  company  should  have  been  given 
to  the  train  manager.  Mich.  Cent.  E.  E.  Co.  v.  Dolan,  '62  Mich.,  510; 
Davis  V.  D.  &  M.  E.  E.  Co.,  20  Mich.,  105.  But  notice  to  an  engineer  of 
defects  in  machinery  held  sufficient  to  render  company  responsible  for 
the  consequences.  Nashville  E.  E.  Co.  v.  Elliott,  1  Cold.  (Tenn.),  611. 
See,  also,  Hoppock  v.  Johnson,  14  Wis. ,  303 ;  Spadan  v.  Manvel,  2  Daley, 
263;  Weisser  v.  Dennison,  10  N,  Y.,  68;  Brown  v.  Bankers',  etc.,  Co.,  30 
Md.,  39;  Eoach  v.  Karr,  18  Kan.,  529;  Wilson  v.  Conway  Fire  Ins.  Co., 
4  E.  I.,  141 ;  Grant  v.  Cole,  8  Ala.,  519. 

2  Watson  V.  Wells,  5  Conn,,  468;  Farrington  v.  Woodward,  82  Pa.  St., 
259. 

^Fulton  Bank  v.  Canal  Co.,  4  Paige,  127;  Banco  de  Lima  v.  Anglo- 
Peruvian  Bank,  L.  E.,  8  Ch.  D.,  160;  In  re  Marseilles,  etc.,  Co.,  L.  E., 
7  Ch.,  161 ;  In  re  Emphe  Bank,  L.  E.,  5  Ch.,  358;  Espin  v.  Pemberton, 
3  De  G.  &  J.,  547,  554,  555;  Wythes  v.  Labouchere,  3  De  G.  &  J.,  593; 
Perry  v.  HoU,  2  De  G.  &  J.,  38,  53. 

*  Bank  of  America  v.  McNeil,  10  Bush,  54. 

5  Bank  of  New  Milford  v.  Town  of  New  Milford,  36  Conn.,  93. 


NOTICE   TO    AN   AGENT.  385 

urer,  he  gave  the  note  of  the  town  to  the  bank,  for  the  pur- 
pose of  effecting  a  loan  for  his  own  use.  As  an  officer  of 
the  bank,  having  charge  of  its  loans,  he  accepted  the  paper, 
and  it  was  held  that  his  knowledge  of  the  fact  that  he  Avas 
acting  without  authority  as  an  olRcer  of  the  town  Avas  the 
knowledge  of  the  bank.' 

§676.  Notice  to  Trustees. —  So,  notice  to  one  of  the 
directors  of  a  bank,  he  being  a  member  of  the  discount 
committee,  has  been  decided  to  be  notice  to  the  banking- 
corporation  ;  and  that  what  was  sufficient  to  put  him  upon 
inquiry  would  also  charge  the  corporation  with  the  duty  of 
makiug  inquiry  in  regard  to  the  same  matter.-  So,  also, 
where  R.  executed  a  deed  of  trust  to  secure  a  debt  due  M., 
and  subsequently  executed  another  deed  of  trust  on  the 
same  property,  to  IST.  and  I.,  as  trustees,  to  secure  a  debt  due 
a  bank  of  which  ]Sr.  was  the  attorne}',  and  I.,  a  director, 
both  the  trustees  having  received  notice  of  the  prior  incum- 
brance before  the  execution  of  the  subsequent  one,  it  was 
held  that  notice  to  them  was  notice  to  their  principal,  and 
consequently  the  prior  incumbrance  should  take  precedence, 
notwithstanding  the  subsequent  deed  Avas  first  recorded.^ 

iSee  Willard  v.  Buckingham,  36  Conn.,  395. 

2  The  Fulton  Bank  v.  Benedict,  1  Hall,  480. 

3  Myers  v.  Ross,  3  Head  (Tenn.),  60.  But  in  order  to  affect  cestuis  que 
trust  with  notice  to  trustees,  there  must  be  subsisting  between  them 
the  relation  of  principal  and  agent.  It  was  accordingly  lield,  in  a  quite 
recent  case,  that  where  the  bonds  belonging  to  a  railroad  company  were 
conveyed  in  trust  to  certain  parties  for  the  purpose  of  securing  its 
own  bonds,  thereafter  to  be  issued  and  negotiated,  notice  of  defenses  to 
the  bonds  so  held,  being  brought  home  to  one  or  more  of  such  trustees, 
would  not  bind  the  holders  of  the  bonds  so  secured.  The  decision  is 
based  upon  the  gi-ound  that  the  trustees  were  the  appointees  of  the  com- 
pany, and  not  of  the  cestuis  que  trust.  Johnson  County  r.  Thayer,  5 
Cent.  L.  J.,  245.  See,  also,  Curtis  v.  Leavitt,  15  N.  Y.,  194.  But  the 
recent  case  of  Johnson  v.  Laflin,  decided  by  Judge  Dillon,  and  reported 
in  6  Cent.  L.  J.,  124  (5  Dill.,  65),  suggests  a  modification  of  the  doctrine 
as  laid  down  in  the  text.  There  the  agent  acted  under  the  authority  of 
a  letter  of  attorney,  executed  in  blank,  in  transferring  certain  shares  of 
stock  upon  the  books  of  the  company.  At  the  time  the  transfer  was 
entered,  the  acting  attorney,  with  whose  name  the  blank  had  been  filled, 

25 


386  PRINCIPAL    AND    AGENT, 

§  677.  Boiiud  by  Agent's  Unlawful  Acts.— Whether  the 
agency  be  general  or  special,  and  whatever  be  the  title  or 
designation  of  the  agent,  if  he  has  sufficient  authority  in 
the  premises  to  contract  for  the  benefit  of  his  principal,  that 
which  would  affect  the  validity  of  such  contract,  if  known 
to  the  principal  at  the  time  of  making  it,  will  have  the 
same  effect  when  known  only  to  the  agent.'  Thus,  where 
a  contract  was  made  by  a  servant  for  his  master  on  Sunday, 
though  this  fact  was  unknown  to  the  master,  such  contract 
"V^  1      could  not  be  enforced  where  it  could  not  have  been  had  it 

knew  that  the  purcliaser,  an  officer  of  the  bank,  was  unlawfully  using 
the  funds  of  the  corporation  to  make  payment  for  tlie  stock.  The  nego- 
tiation for  the  stock  was  between  the  selhng  broker  and  the  purchaser, 
and  the  transaction  was  held  complete  as  between  the  parties,  by  the 
transfer  of  the  certificates  and  the  receipt  of  the  money ;  so  that  there 
was  no  such  relation  subsisting  between  the  attorney  making  the  trans- 
fer and  the  original  seller  of  the  stock  as  would  charge  the  latter  with 
notice  of  facts  witliiu  the  knowledge  of  the  former  contemporaneously 
with  his  action  under  the  power  of  attoj-ney.  Had  the  facts  been  known 
to  the  broker  employed  to  make  the  sale,  there  seems  no  doubt  that  the 
case  would  have  been  differently  decided.  But  if  the  attorney  in  fact 
was  not  the  agent  of  the  party  by  whom  tlie  blank  instrument  was  exe- 
cuted, at  the  very  time  "he  acted,  by  whose  authority  did  he  make  the 
transfer?  Tliis  opens  the  question  of  how  far  a  party  is  chargeable  w^ith 
notice  o£  facts  coming  to  the  knowledge  of  his  agent,  while  acting  under 
written  authority  executed  in  blank.  This  question,  however,  was  not 
deemed  of  vital  importance  to  the  case,  for  the  reason  that  the  seller  had 
a  right  to  demand  its  transfer  on  the  books  upon  the  completion  of  the 
transaction  between  himself  and  the  purchaser,  and  that  direct  personal 
notice  to  him  after  the  payment  of  the  purchase  money  would  have  been 
too  late  to  affect  him.  It  was  also  decided  in  this  case  that  share- 
holders were  not  bound  to  take  notice  of  irregulai'ities  on  the  part  of 
directors  in  respect  to  the  transfer  of  their  shares,  and  that  such  share- 
holders, even  though  they  be  directors,  in  transfeiTing  their  stock,  are 
not  bound  to  take  notice  of  the  books  of  account  of  the  company  —  cit- 
ing with  approval,  Bargate  v.  Shortridge,  5  House  of  Lords  Cas.,  297; 
Taylor  v.  Hughes,  2  Jones  &  Lat.,  24;  Ex  imrte  Bagge  re  North  Coal 
Co.,  13  Beav.,  162;  Cartmell's  Case,  9  Ch.  App.,  691 ;  Hill  v.  Manchester, 
etc.,  2  Nev.  &  M.,  573;  5  Barn.  &  AdoL,  874:  Haynes  v.  Brown,  36  N.  H., 
568.     See,  also,  Johnston  v.  Laflin,  103  U.  S.,  800. 

'The  Distilled  Spuits,  11  Wall.,  356;  Bierce  v.  Red  Bluff  Hotel  Co.,  81 
Cal.,  160, 


NOTICE   TO   AN    AGENT.  387 

been  entered  into  on  that  day  with  the  knowledge  of  the 
master.^  So  where  an  agent  to  sell  goods  sold  with  the 
knowledge  that  the  goods  were  purchased  for  an  unlawful 
purpose,  the  principal  would  be  affected  by  such  knowledge, 
and  could  not  recover  in  an  action  for  the  price.-    * 

§  678.  Person  Misled  by  Acts  of  Principal. —  Whatever     S\ 
be  the  limits  upon  the  authority  of  the  agent,  the  principal     f 
will  be  bound  by  notice  to  him  as  to  an  agent  with  general     ' 
powers,  when  the  conduct  of  the  principal  has  been  such  as 
to  lead  to  the  belief  that  the  agency  was  general.^ 

§  679.  Wife  Affected  with  Husband's  Knowledge.—  ^^^yf''^ 
There  are  cases  in  which  the  knowledge  of  the  husband,  tJr(iM4  ^ 
when  acting  as  ao-ent  of  the  wife,  has  been  held  to  affect 
her  interest  in  the  transaction.  As  where  property  was 
purchased  for  the  wife  by  the  husband  acting  as  her  agent, 
his  knowledge  that  a  fraud  was  being  perpetrated  was  held 
sufficient  to  chari^e  her  with  notice  of  such  fraud.* 

§  680.  Confineil  to  Transactions  in  Which  He  Is  Ac- 
tive.—  But  though  the  husband,  by  virtue  of  the  marital 
relation,  is  a  sort  of  general  agent  to  transact  business  for 
his  wife,  acting  without  any  authority  specially  conferred 
by  her,  the  knowledge  possessed  by  him  will  not  affect  her 
with  notice  in  transactions  Avith  which  he  has  nothing  to 
do.^  And  even  where  a  husband  received  a  conveyance  to 
himself  and  wife,  by  which  they  became  possessed  of  an 
estate  by  the  entirety,  it  was  held  that  notice  to  the  husband 
of  a  prior  unrecorded  mortgage  would  not  operate  as  notice 
to  the  wife  so  as  to  affect  her  title  by  survivorship.** 

i  Smith  V.  Sparrow,  4  Bing.,  84;  Mosley  v.  Hatch,  108  Mass.,  517;  Ster- 
ling Bridge  Co.  v.  Baker,  75  111.,  139. 

2  Suit  V,  Woodhall,  113  Mass.,  391. 

3  Keenan  v.  Missouri  Ins.  Co,,  12  Iowa,  126. 

*  Clark  V.  FuUer,  39  Conn.,  238;  White  v.  King,  53  Ala.,  162;  Duke  v. 
Bohm,  16  Mmn.,  306;  Pringle  v.  Dunn,  37  Wis.,  449;  Willes  v.  Greenhill, 
4  DeG.,  F.  &  J.,  147,  150. 

5  Pringle  v.  Dunn,  87  Wis.,  449. 

«  Snyder  v.  Sponable,  1  Hill,  567;  mpra,  %  674,  No.  2. 


388  FKINCIPAL   AND   AGENT. 

§  681.  Notice  to  One  of  Several  Agents  Snfficient. — 

That  there  are  several  agents  who  act  jointly  in  the  conduct 
of  the  business,  with  reference  to  which  it  is  sought  to 
affect  the  principal  with  notice,  does  not  render  it  necessary, 
in  order  to  charge  the  principal,  to  bring  home  to  all  the 
agents  a  knowledge  of  such  fact.  E'otice  to  one  wiU  be  as 
effectual  as  notice  to  all.^  There  being  no  difference  be- 
tween the  obligation  resting  upon  one  of  several  joint 
agents,  and  that  resting  upon  a  sole  agent,  in  regard  to  com- 
municating facts  which  come  to  his  knowledge,  there  can 
be  no  difference  in  the  manner  in  which  the  possession  of 
such  knowledge  will  affect  the  principal.  Where  the  prin- 
cipal is  a  corporation,  and  imposes  upon  its  directors  collect- 
ively the  duty  of  managing  its  affairs  and  guarding  its 
interests,  and  one  of  such  directors  is  guilty  of  a  breach  of 
duty  in  failing  to  communicate  to  the  board,  when  officially 
assembled,  or  to  the  officers  of  the  corporation,  the  knowl- 
edo-e  which  he  has  obtained  in  relation  to  matters  in  which 
the  corporation  is  interested,  it  should  be  the  sufferer  by 
such  concealment,  rather  than  an  innocent  party  whose  in- 
terests are  involved  in  the  transaction.^ 

§  682.  Director  of  a  Bunk.—  Accordingly,  in  a  case 
where  one  of  the  directors  of  a  bank  had  notice  of  the  fraud- 
ulent perversion  from  the  objects  for  which  they  were 
drawn,  of  certain  bills,  and  with  that  knowledge  was  pres- 
ent at  a  meeting  of  the  board  where  the  same  bills  were 
presented  for  discount,  his  knowledge  was  properly  held  to 
be  the  knowledge  of  the  bank.^ 

§  683.  Corporation  Not  Affected  with  Every  Fact  Known 
to  Directors. —  However,  the  mere  fact  that  a  bank  director 

1  Fulton  Bank  v.  N.  Y.  &  S.  Canal  Co.,  4  Paige,  127 ;  North  River  Bank 
V.  Aymar,  3  Hill,  263;  Willes  v.  Greenliill,  supra;  Bank  of  U.  S.  v.  Davis, 
2  Hill,  451,  464. 

2  The  language  of  the  text  must  be  taken  as  qualified  by  §  683a  and 
authorities  cited  infra. 

3  Bank  of  United  States  v.  Davis,  2  Hill,  451 ;  Nat.  Security  Bank  v. 
Cuslunan,  131  Mass.,  490;  Clerks'  Savings  Bank  v.  Thomas,  2  Mo.  App., 
367 ;  Edwards  v.  Thomas,  id.,  282. 


NOTICE   TO   AN   AGENT.  389 

is  in  possession  of  certain  knowledge  whicli  would  prevent 
his  becoming  an  innocent  holder  would  not  affect  the  bank 
if  the  paper  should  be  received  there  and  discounted,  with- 
out his  knowledge.  It  could  hardly  be  his  duty  to  report 
to  his  bank  every  fact  coming  to  his  notice,  in  relation  to  all 
the  negotiable  paper  of  which  he  may  have  any  knowledge, 
where  he  had  received  no  intimation  that  such  paper  would 
be  presented  there  for  discount.^  But  some  of  the  cases 
cited  in  the  note  will  be  found  to  go  much  farther,  and  take 
the  ground  that  the  bank  cannot  be  affected  by  notice  to 
one  of  its  directors,  for  the  reason  that  such  directors,  in 
their  individual  capacity,  are  neither  officers  nor  agents  of 
the  corporation.  This  distinction,  however,  is  not  supported 
by  the  weight  of  authorit}^-  The  best  considered  cases  do 
not  seem  to  favor  the  exemption  of  corporations  from  the 
duty  of  taking  notice  of  facts  known  to  their  directors,  any 
further  than  is  here  stated.^ 

683a.  Notice  to  Directors  of  Corporation.— It  is  not  a 
mere  question  whether  the  notice  is  actually  communicated 
to  one  or  several  of  the  directors,  nor  even  to  each  of  them. 
The  directors,  when  convened  and  acting  for  the  corporation, 
stand  to  the  corporate  body  in  a  relation  somewhat  closer 
than  that  of  ordinary  agency.  They  are,  to  all  intents  and 
purposes,  when  acting  Avithin  the  scope  of  the  powers  con- 
ferred by  their  charter,  the  corporation  itself.  As  individuals, 
however,  they  are  mere  agents,  if  they  have  any  individual 

J  Louisiana  State  Bank  v.  Senecal,  13  La.,  525;  General  Ins.  Co.  v.  U. 
S.  Ins.  Co.,  10  Md.,  517;  Farmers'  &  Citizens'  Bank  v.  Payne,  25  Conn., 
444 ;  Nat.  Bank  v.  Norton,  1  Hill,  572 ;  Washington  Bank  v.  Lewis,  22 
Pick.,  24;  Hai-tford  Bank  v.  Hart,  3  Day,  491;  Housatonic  Bank  v.  Mar- 
tin, 1  Met.,  308;  Farrell  Foundry  r.  Dart,  2G  Conn.,  376;  IVHller  v.  111., 
etc.,  R.  Co.,  24  Barb.,  313:  Suit  v.  Woodhall,  113  Mass.,  391. 

2 Smith  V.  Water  Com'rs,  38  Conn.,  208;  Fogg  v.  Tennessee  Nat.  Bank, 
9  Heisk.,  479;  Fulton  Btink  v.  Canal  Co.,  4  Paige,  127;  New  Hope  Bridge 
Co.  V.  Phoenix  Bank,  3  N.  Y.,  156;  Branch  Bank  r.  Steele,  10  Ala.,  915; 
Holden  v.  N.  Y.  &  Erie  Bank,  72  N.  Y.,  286 ;  North  Ri%-er  Bank  v.  Aymar, 
3  Hill,  262;  First  Nat.  Bank  v.  Town  of  Milford,  36  Conn.,  93. 

3  Supra. 


390  PEINCIPAL   AND    AGENT. 

authority  beyond  that  of  votiDg  at  the  dehberations  for 
tvhich  they  are  convened.  Mere  casual  knowledge  of  facts, 
acquired  by  one  of  the  directors  while  in  pursuit  of  his 
private  business,  with  no  intimation  that  they  would  affect 
the  corporation,  would  not  amount  to  notice  to  the  corporate 
body.^  "Where  one  of  the  directors  of  a  bank  indorsed  a 
note  "with  knowledge  that  it  was  given  without  considera- 
tion, this  was  held  insufficient  to  charge  the  bank,  in  dis- 
counting the  paper,  with  notice  of  want  of  consideration, 
although  the  indorsing  director  was  present  when  it  was 
discounted,  unless  he  were  constituted  an  organ  of  com- 
munication between  the  bank  and  those  dealing  with  it.^ 
Where  the  fact  in  question  comes  to  the  knowledge  of  the 
director  or  officer  of  a  corporation  when  he  is  not  only  act- 
ing unofficially,  but  is  dealing  with  the  company  as  a 
stranger,  or  the  position  in  which  he  stands  brings  his  indi- 
vidual interest  in  conflict  with  that  of  the  corporation,  there 
is  an  additional  reason  for  not.  imputing  his  knowledge  to 
the  institution  he  represents.  His  position,  for  the  purposes 
of  that  transaction,  is  that  of  a  stranger  to  the  corporation.^ 
But  where  a  fact  is  communicated  to  an  individual  director 
for  the  purpose  of  bringing  it  to  the  attention  of  the  corpo- 
ration, it  wiU  be  effectual,  though  he  negligently  or  fraudu- 
lently fails  to  communicate  it.^  And  where  he  acts  for  the 
corporation  in  the  transaction  of  the  business  in  respect  to 
which  it  is  sought  to  charge  it  with  notice ;  as  where  he,  as 
one  of  the  board  of  directors,  authorizes  the  discount  of  a 

iLoomis  V.  Eagle  Bank,  etc.,  2  Disney  (Ohio),  285;  Powles  v.  Page, 
3  M.,  G.  &  S.,  16. 

2  Custer  V.  Tompkins  County  Bank,  9  Pa.  St.,  27. 

'Winchester  v.  Baltimore  R.  Co.,  4Md.,  238;  U.  S.  Insurance  Co.  v. 
Shriver,  3  Md.  Ch.,  388;  Gen'l  Ins.  Co.  v.  U.  S.  Ins.  Co.,  10  Md.,  527; 
Commercial  Bank  v.  Cunningham,  24  Pick.,  270;  Louisiana  State  Bank 
V.  Senecal,  13  La.,  525;  Terrell  v.  Bank  of  Mobile^  12  Ala.,  502;  Washing- 
ton Bank  V.  Lewis,  22  Pick.,  30;  Sawyer's  v.  Pawner's  Bank,  6  Allen, 
207;  Fu-st  Nat.  Bank  v.  Christopher,  40  N.  J.  L.,  435. 

*U.  S.  Ins.  Co.  V.  Shriver,  3  Md.  Ch,,  388.  See,  also,  La  Farge  Ins, 
Co.  V.  BeU,  22  Barb.,  54, 


NOTICE   TO   AN   AGENT.  391 

note  procured  by  fraud,  of  which  he  had  notice,  the  bank 
would  be  bound  as  thouHi  his  knowledge  had  been  com- 
municated  to  the  entire  board.'  When  the  fact  in  question 
comes  to  the  knowledge  of  a  director  or  othei"  officer  when 
he  is  making-  authorized  oihcial  inquiry,  or  is  otherwise 
engaged  officially  for  his  principal,  it  can  be  of  no  conse- 
quence that  he  fails  to  communicate  it,-  or  even  that  it  was 
not  communicated  to  him  for  the  purpose  of  informing  the 
corporation. 

§  683b.  Notice  to  Corporations  Tlirough  Their  Exec- 
utive Officers. —  The  principal  matter  that  determines 
whether  a  corporation  may  be  affected  with  notice  to  one  of 
its  officers  is  the  nature  of  the  duties  of  such  officer,  and 
whether  they  are  connected  Avith  the  facts  brought  to  his 
attention.  A  corporation  will  alwa^^s  be  affected  when  the 
notice  comes  to  it  through  an  officer  within  whose  special 
line  of  duty  the  matter  in  question  lies.^  But  where  the 
duties  of  the  officer  served  are  entirely  disconnected  with 
that  branch  of  the  business  to  which  the  notice  relates,  it 
must  be  held  otherwise.  When,  however,  the  notice  is 
served  upon  one  who  has  a  general  supervision  of  the  busi- 
ness, embracing  the  transaction  to  which  the  notice  relates 
as  well  as  others,  no  good  reason  is  apparent  why  it  should 
not  be  regarded  as  notice  to  the  corporation.''  The  cashier 
of  a  bank  is  the  particular  officer  who  has  charge  of  the 

'National  Security  Bank  v.  Cushman,  121  Mass.,  490,  See,  in  this 
connection,  Farmers',  etc..  Bank  ^^  Paine,  25  Conn.,  446;  Bank  of  U.  S. 
V.  Davis,  2  Hill,  454;  North  River  Bank  v.  Aymar,  3  Hill,  263;  Bank  of 
Pittsburgh  v.  Whitehead,  10  Watts,  402;  Suit  v.  Woodhall,  113  Mass., 
391. 

2 New  York,  etc.,  R.  Co.  v.  Schuyler,  34  N.  Y.,  30;  Marshall  r.  Colum- 
bian Ins.  Co.,  27  N.  H.,  157. 

3  Bank  of  Virginian.  Craig,  6  Leigh,  399;  Fall  River,  etc..  Bank  i». 
Sturtevant,  12  Cush.,  372;  Bank  of  St.  Mary's  v.  Mumford,  6Ga.,  44; 
Tiffany  v.  Boatman's  Inst.,  18  Wall.,  375. 

4  Porter  v.  Bank  of  Rutland,  19  Vt.,  410;  Smith  v.  Board  of  Water 
Commissioners,  38  Conn.,  208;  Bank  of  Pittsburgh  v.  Whitehead,  10 
Watts,  397;  Union  Mining  Co,  v.  Rocky  Mountain  Nat.  Bank,  3  Colo., 
349. 


392  PRINCIPAL   AND    AGENT. 

ordinary  business  of  the  bank,  and  for  this  reason  notice  of 
facts  affecting  its  business  will  bind  the  corporation.^  So 
where  a  cashier  was  ex  officio  member  of  the  discount  com- 
mittee, and  knew  that  a  stockholder  had  pledged  his  stock 
to  secure  a  debt,  after  which  the  latter  presented  a  note  for 
discount  at  the  bank.  The  note  was  received  by  the  bank 
while  the  cashier  knew  of  the  pledge  of  the  stock.  The 
stockholder  becoming  insolvent,  the  bank  claimed  a  prior 
lien  on  the  stock  as  security,  which  claim  was  disallowed 
upon  the  principle  that  the  cashier  was  presumed  to  have 
acted  with  the  committee,  with  knowledge  of  the  fact 
that  the  stock  Avas  pledged,  and  such  knowledge  would  bind 
the  corporation  for  which  he  acted,  whether  it  was  commu- 
nicated to  the  rest  of  the  committee  or  not.-  The  same 
exception  is  made  in  case  of  an  officer  dealing  with  the  cor- 
poration as  a  customer  that  applies  to  directors.  When  the 
officer  transacts  business  with  the  corporation  instead  of  for 
it,  he  is  supposed  to  treat  with  it  at  arms-length,  and  not  to 
disclose  facts  against  his  own  interest.* 

§  684.  Joint  Purchasers  Not  Principal  and  Agent. — 
The  mere  circumstance  that  two  persons  are  jointly  inter- 
ested in  a  purchase  will  not  estabhsh  between  them  the  re- 
lation of  mutual  agency,  so  that  notice  to  one  will  affect 
the  other,  even  with  respect  to  the  property  of  which  they 
are  joint  tenants.^  But  when  notice  is  given  to  one  of  sev- 
eral partners  in  connection  with  the  business  of  the  partner- 

1  Duncan  v.  Jaudon,  15  Wall.,  165;  Reynolds  v.  Kenyon,  43  Barb., 
585;  Gould?;.  Cajuga  County,  etc.,  Bank.  56  How.  Pr.,  505;  Trenton 
Banking  Co.  v.  Woodruff,  3  N.  J.  Eq.,  117;  Branch  Bank  v.  Steele,  10 
Ala.,  915. 

-  Bank  of  America  v.  McNeil,  10  Bush,  54. 

3  Barnes  v.  Trenton  Gas  Light  Co.,  27  N.  J.  Eq.,  33.  In  a  recent  case 
decided  by  the  supreme  court  of  Nevada,  it  was  held  that  Avhere  it  was 
necessary  to  give  notice  to  a  corporation  which  had  no  legal  officers  or 
trustees,  a  notice  given  to  the  owner  of  all  the  stock  who  managed  and 
directed  its  business  was  sufficient.  Orr  Water  Ditch  Co.  v.  Reno  Water 
Co. ,  5  West  Coast  Rep. ,  666. 

^Flagg  V.  Mann,  2  Sumn.,  486;  Snyder  v.  Sponable,  1  HiU,  567;  7  id., 
427. 


NOTICE   TO   AN   AGENT.  393 

ship,  his  copartners  will  be  affected;  and  this  has  been  put 
upon  the  ground  of  mutual  agency.^ 

§  685.  The  Same  Kind  of  Notice  to  Principals  as  to 
Agents. —  Notice  to  an  agent,  in  order  to  bind  the  principal, 
need  not  be  any  more  full  or  circumstantial  in  its  details 
than  would  suiBce  had  it  been  directly  to  the  principal. 
Where  a  subsequent  purchaser  is  to  be  charged  with  notice, 
it  is  not  essential  that  the  agent  should  be  informed  of 
every  fact  which  it  is  important  for  the  principal  to  know. 
It  will  generally  be  a  good  notice  if  it  is  sufficiently  explicit 
to  put  the  agent  upon  inquiry  leading  to  the  truth.- 

§  686.  To  Agent  of  Agent  Not  Sufficient.— To  have 
the  effect  of  bringing  knowledge  home  to  the  principal  the 
notice  must  be  to  his  agent,  and  not  to  any  agent  or 
attorney  employed  by  such  agent.  It  was  so  held  where 
the  question  arose  under  the  general  bankrupt  law,  in  de- 
ciding whether  or  not  the  principal  had  received  a  prefer- 
ence.^ The  principal,  residing  in  ISTew  York,  emplo3''ed  an 
attorney  there  to  collect  a  sum  of  money  due  from  a  debtor 
resident  in  Omaha,  Nebraska.  For  purposes  of  his  own 
convenience,  and  without  consulting  his  client,  the  attorney 
employed  another  attorney  at  Omaha,  who,  being  aware  of 
the  debtor's  insolvent  condition,  collected  the  debt  and 
transmitted  the  sum  collected  to  the  New  York  attorney, 
and  within  two  months  thereafter  the  debtor  was  declared 
bankrupt.  It  was  held  that  the  Omaha  attorney  was  the 
agent  of  the  attorney  by  whom  he  was  employed,  and  not 
of  the  client  who  ultimately  received  the  money.  Hence, 
the  notice  of  insolvency,  not  being  to  the  agent  of  the 
creditor,  he  was  held  unaffected  thereby. 

§  687.  Place,  Manner  and  Time  of  Acquiring  Knowl- 
edge.—  When  at  the  time  of  a  transaction  by  one  acting  in 

1  AVatson  v.  Wells,  5  Conn.,  468. 

2 Barnes  v.  McClinton,  3  Pa.,  67;  Fulton  Bank  v.  Benedict,  1  Hall, 
480 ;  ante,  §  33 ;  Hart  v.  Farmers'  &  Mechanics'  Bank,  33  Vt.,  253. 

3  Hoover  v.  Wise,  91  U.  S.,  308;  S.  C,  3  Cent.  L.  J.,  276;  S.  G.,  14  N. 
B.  R.,  264. 


394  PKIKCIPAL   AND   AGEXT. 

the  capacit}^  of  agent,  the  recollection  of  the  fact  with  no- 
tice of  which  it  is  sought  to  charge  the  principal  is  present 
to  the  mind  of  the  agent,  wheresoever,  howsoever  or  whenso- 
ever the  knowledge  of  such  fact  was  obtained,  such  knowl- 
edge Avill  be  the  knowledge  of  the  principal,  provided  it 
come  to  the  agent  in  a  manner  that  he  might  communicate 
it,  or  act  upon  it,  without  being  guilty  of  a  positive  viola- 
tion of  dutj.^  This  doctrine  is  advanced  with  some  hesi- 
tancy, not  because  of  any  doubt  as  to  its  soundness,  on 
principle,  or  as  to  its  being  supported  by  the  best  authority; 
but  there  has  been  such  a  contrariety  of  opinion  expressed 
upon  the  subject,  by  the  courts  of  the  different  states,  that 
it  would  be  impossible  to  make  any  statement  of  a  general 
rule  which  will  be  universally  accepted  and  acted  upon. 

§  688.  Same  —  IVhen  to  be  Considered. —  Incases  where 
the  doctrine  announced  above  is  questioned,  it  is  insisted 
either  that  the  Imoioledrje  should  he  acquired  ly  the  agent, 
during  the  agency;  ^  or  that  it  should  come  to  him  in  such  a 
Tnanner,  and  under  such  circumstances,  that  he  ina.y  he  pre- 
sumed to  have  communicated  it  to  his  principal?     There  can 

iLe  Neve  v.  Le  Neve,  3  Atk.,  646;  S.  C,  2  Lead.  Cas.  in  Eq.,  Pt.  1, 
p.  35;  Brotherton  v.  Hatt,  3  Vern.,  574;  Dresser  v.  Norwood,  17  C.  B., 
N.  S.,  466;  WiUiams  v.  Tatnall,  29  111.,  553;  WUey  v.  Knight,  27  Ala., 
336;  The  Distilled  Sphits,  11  Wall.,  356;  Haa-t  v.  Farmers'  &  Mechanics' 
Bank,  33  Vt.,  252;  Patton  v.  Ins.  Co.,  40  N.  H.,  375.  See,  also,  Pritchett 
V.  Sessions,  10  Rich.  Law,  293 ;  Holden  v.  N.  Y.  &  E.  Bank  (Ct.  of  Ap. 
N.  Y.,  1878),  6  Reporter,  692. 

••2  Hood  V.  Fahnestock,  8  Watts,  489 ;  N.  Y.  Cent.  Ins.  Co.  v.  Nat.  Prot. 
Ins.  Co.,  20  Barb.,  468;  Smith's  Appeal,  47  Pa.  St.,  128;  Mehan  v.  WiU- 
iams, 48  Pa.  St.,  238;  Day  v.  Walmsley,  33  Ind.,  145;  Blumenthal  v. 
Brainard,  38  Vt.,  402;  Haywood  v.  National  Ins.  Co.,  52  Mo.,  181 ;  War- 
wick V.  Warwick,  3  Atk.,  291;  Norris  v.  Le  Neve,  3  Atk.,  26;  Mechan- 
ics' Bank  v.  Shaumburg.  38  Mo.,  228;  Howard  Ins.  Co.  v.  Halsey,  8  N. 
Y.,  271 ;  McCormack  v.  Wlieeler,  36  III.,  114 ;  Houseman  v.  Mutual  Build. 
&Sav.  Ass'n,  81  Pa.  St.,  256;  Lloyd  v.  Atwood,  3  De  G.  &  J.,  614;  Tybee 
V.  Webb,  6  Beav.,  552;  Ashley  r.  BaUlie,  2  Ves.  Sr.,  368;  Lawrence  v. 
Tucker,  7  Greenl.,  195;  Abell  v.  Howe,  43  Vt.,  403. 

3  Winchester  v.  Baltimore  R.  R.  Co.,  4  Md.,  231 ;  La  Fai-ge  Ins.  Co.  v. 
Bell,  22  Barb.,  54;  Thompson  v.  Cai'twright,  33  Beavan,  178;  Kenedy  v. 
Green,  3  Myhie  &  K.,  699. 


NOTICE   TO   AN   AGENT.  395 

be  no  doubt  that  when  the  notice  comes  to  the  agent  before 
the  relation  is  established,  and  the  question  whether  at  the 
time  of  the  transaction  as  agent  the  recollection  of  the  fact 
was  present  to  his  mind,  depends  for  its  solution  upon  mere 
inference,  or  presumption  from  his  previously  acquired 
knowledge,  time  is  a  very  important  matter  for  considera- 
tion. If  the  fact  came  to  the  knowledge  of  the  agent  long 
before  the  commencement  of  the  agency,  it  would  not  be 
safe  to  infer  that  he  recollected  it  when  the  transaction 
with  the  agent  took  place.  And  in  most  of  the  cases  where 
time  is  insisted  on,  this  seems  to  be  the  consideration  oper- 
ating upon  the  mind  of  the  court.  As  in  the  case  of  War- 
wick V.  "Warwick,!  the  agent  alleged  to  have  been  possessed 
of  knowledge  was  dead,  and  there  seems  to  have  been  no 
evidence  that  he  recollected  the  fact,  when  acting  as  agent 
of  the  party  to  be  charged.  So  in  Day  v.  Walmsley,-  goods 
were  sold  to  the  defendant's  wife,  by  a  salesman,  who,  pre- 
vious to  his  employment,  had  heard  in  an  idle  conversation 
that  defendant  and  wife  had  separated.  There  being  no 
better  evidence  that  he  knew  of  the  fact  of  separation  at 
the  time  of  selling  the  goods,  it  Avas  held  that  this  would 
not  be  sufficient  to  affect  plaintiff,  the  employer  of  the  sales- 
man, with  notice  of  such  fact.  So,  also,  in  the  case  of 
Bracken  v.  Miller,^  the  knowledge  of  a  secret  trust  was 
gained  by  the  attorney  seven  years  before  he  was  emplo^^ed 
by  the  party  sought  to  be  charged  with  notice  of  such  trust. 
And  other  cases  might  be  cited,  where  time  was  a  question 
of  real  importance  in  determining  the  validity  of  the  notice. 
§689.  Knowledge  Acquired  During  Agency.— But  in 
many  of  those  cases  in  which  the  doctrine  is  recognized  that 
iiotice  should  come  to  the  agent  after  the  relation  has  been 
established,  an  exception  is  admitted  which  tacitly  concedes 
that  the  important  matter  to  prove  is  that  the  agent  was 
cognizant  of  the  fact  when  he  acted  for  his  principal,  and 

13  Atk.,  291. 
233  Ind.,  145, 
3  4W.  &S.,  103. 


396  PEINCIPAL   AND   AGENT. 

not  that  he  acquired  the  knowledge  at  any  particular  time. 
The  exceptional  cases  are  those  where  the  transactions  fol- 
low each  other  so  closely  that  it  is  regarded  as  impossible 
for  the  agent  to  have  forgotten  the  first  when  the  second 
took  place.  It  is  therefore  held  that  the  agent's  knowledge, 
acquired  in  the  course  of  the  first  transaction,  would  be 
notice  to  the  principal,  though  the  relation  of  principal  and 
agent  only  subsisted  between  them  in  respect  to  the  second 
transaction.^  This  is  a  virtual  abandonment  of  the  principle 
upon  which  the  distinction  is  founded. 

§  690.  Agent's  Duty  to  Communicate. —  The  restriction 
of  the  rule  to  cases  where  there  is  a  probability  that  the 
agent  will  communicate  the  knowledge  seems  to  have  had 
its  origin  in  a  total  misapprehension  of  the  purposes  for 
which  tlie  rule  was  established.  It  tends  to  defeat  the  appli- 
cation of  the  doctrine  to  cases  where  it  is  most  essential  in 
the  promotion  of  gopd  faith  and  fair  deahng.  One  of  the 
most  striking  cases  of  the  application  of  this  distinction  is 
that  of  Thompson  y.  Cartwright."  Here  a  solicitor  acted 
for  both  parties  in  preparing  a  deed  which  contained  the 

1  Winter  v.  Lord  Anson,  1  S.  &  S.,  434;  S.  ..,  3  Russ.,  488;  Hars:i-eaves 
V.  Eothwell,  1  Keen,  154;  Fogg  v.  Tennessee  National  Bank,  9  Heisk., 
479;  Holdenu.  N.  Y.  &  E.  Bank,  72  N.  Y.,  286;  Ames  v.  N.  Y.  Union 
Ins.  Co.,  14  N.  Y.,  253;  Hai-t  v.  Farmers' &  Mechanics'  Bank,  33  Vt.,  252; 
Abell  V.  Howe,  43  Vt.,  403;  Wiley  v.  Knight,  27  Ala.,  336;  Pritchett  r. 
Sessions,  10  Eich.  (Law),  293;  Dunlap  v.  AVilson,  32  111.,  517;  Williams 
V.  Tatnall,  29  id.,  553;  Hovey  v.  Blanchard,  13  N.  H.,  145;  Patten  r.  Ins. 
Co.,  40  id.,  375;  The  DistiUed  Spii-its,  11  Wall.,  356;  Fuller  %\  Bennett, 
2  Hare,  394;  Atterbury  v.  WaUis,  8  De  G.,  M.  &  G.,  454;  Perkins  v. 
Bradley,  1  Hare,  219;  Porter  v.  Bank  of  Rutland,  19  Vt.,  410;  RoUand 
V.  Hart,  L.  R.,  6  Ch.,  678-82;  Pepper  v.  George,  51  Ala.,  190;  G.  W.  R'y 
Co.  V.  Wlieeler,  20  Mich.,  419;  May  v.  Borel,  12  Cal.,  91;  Hodgkins  v. 
Montgomery  County  Ins.  Co.,  34  Barb.,  213;  Fry  v.  Shehee,  55  Ga.,  208: 
Mountford  v.  Scott,  T.  &  R.,  274;  Nixon  v.  Hammilton,  2  Dr.  &  Wal., 
364 ;  Perkins  v.  Bradley,  1  Hare,  219. 

.  233  Beav.,  178.  See,  also,  Cove  v.  Cove,  L.  R.,  15  Ch.  Div.,  639; 
Waldy-y.  Gray,  L.  R.,  20  Eq.,  238;  Hiorns  v.  Holton,  16  Beav.,  259; 
Trail  r.  Ellis,  16  Beav.,  350;  Neesom  v.  Clarkson,  2  Hare,  163;  Barnes 
V.  Trenton,  etc.,  Co.,  27  N.  J.  Eq.,  33;  Winchester  v.  Raikoad,  4  Md., 
231. 


NOTICE   TO   AN   AGENT.  *  397 

usual  covenants  against  prior  incumbrances.  The  same 
solicitor  had  previously  prepared  a  mortgage  upon  the  iden- 
tical property,  which  mortgage,  however,  had  not  been  reg- 
istered. There  was  no  question  of  the  fact  being  present  to 
the  solicitor's  recollection  at  the  time  of  drawing:  the  second 
deed,  and  it  was  decided  that  upon  the  party  sought  to  be 
charged  with  notice  rested  the  burthen  of  overcoming  the 
legal  presumption  that  his  agent  had  communicated  such 
fact.  No  direct  evidence  was  offered  upon  this  point ;  but 
the  court  held  that  the  fact  that  the  solicitor  was  also  em- 
ployed by  the  party  whose  interest  it  vv^as  to  conceal  the 
prior  mortgage  was  sufficient  circumstantial  evidence  that 
it  was  concealed  from  the  principal,  and  he  was  therefore 
unaffected  by  the  agent's  knowledge.  Leaving  out  of  con- 
sideration the  probable  event  of  its  being  utterly  impossible 
for  the  agent  to  communicate  the  knowledge  in  time,  the  case 
cited  above  fairly  illustrates  the  danger  of  resting  the 
rule  upon  the  presumption  that  the  agent  communicates  the 
knowledge  of  which  he  is  possessed,  unless  such  presumption 
is  conclusive.  The  doctrine  announced  in  this  case  is  against  0 
the  weight  of  authority,  both  in  England  and  in  this  coun- » 
try} 

§  691.  Where  Agent's  Authority  Depends  Upon  Ratifi- 
cation.— If  one  without  authority  assume  to  act  as  the  agent 
of  another,  and  the  latter  take  the  benefit  of  the  unauthor- 
ized act,  by  claiming  rights  under  it,  or  otherwise  ratifying 
the  acts  of  his  self-appointed  agent,  he  must  take  such  ben- 

1  Willard  v.  Buckingham,  36  Conn.,  395 ;  Bank  of  U.  S.  v.  Davis,  2  Hill, 
451;  The  Distilled  Spirits,  11  Wall.,  356;  Le  Neve  v.  Le  Neve,  3  Atk., 
646;  S.  a,  3  Lead.  Cas.  Eq.,  Pt.  1,  p.  351;  Brotherton  v.  Hatt,  2  Vern., 
574.  But  the  rule  rests  upon  the  duty  to  communicate.  Rolland  v. 
Hart,  L.  R.,  6  Ch.,  678;  Jones  v.  Bamford,  21  la.,  217;  Hewitt  v.  Loose- 
more,  9  Hare,  449;  Kenedy  v.  Green,  3  My,  &  K.,  699;  Dryden  v.  Frost, 
3  My.  &  Cr,,  670;  Tweedale  v.  Tweedale,  23  Beav.,  341;  Fuller  v.  Ben- 
nett, 2  Hare,  394,  402;  Losey  v.  Simpson,  3  Stockt.  Ch.,  246;  Tucker  r. 
Henzill,  4  Ir.  Ch.  R.,  513;  In  re  Rorke,  13  id.,  273;  14  id.,  442;  Owens 
V.  Roberts,  36  Wis.,  258;  Suit  v.  Woodhall,  113  Mass.,  391;  Bradley  v. 
Riches,  L.  R.,  9  Ch.  D.,  189-96.  * 


398  rrJNCiPAL  akd  agent. 

efit,  charged  with  notice  of  such  matters  as  appear  to  have 
been  within  the  knowledge  and  recollection  of  the  agent  at 
the  time  of  the  transaction.^  In  the  case  cited,  the  grantor 
in  a  ])rior  unrecorded  conveyance  acted  as  the  agent  of  his 
creditor  in  directing  the  levy  of  an  attachment  upon  the 
same  property.  The  creditor,  by  claiming  rights  under  the 
levy,  ratified  the  agency,  and  was  charged  with  knowledge 
of  the  prior  conveyance,  though  the  fact  was  never  com- 
municated to  him  by  the  agent.  So  where  B.,  having  notice 
of  an  incumbrance,  purchased  in  the  name  of  M.,  whom  he 
afterwards  agreed  should  become  the  purchaser  direct,  and 
M.  accordingly  paid  the  purchase  money,  without  notice  of 
the  incumbrance,  it  was  held  that  although  he  did  not  em- 
ploy B.,  nor  knew  anything  of  the  purchase  until  after  it  was 
made,  yet  by  his  subsequent  approval  he  made  B.  his  agent 
ah  initio^  and  was  therefore  affected  with  notice.-  In  gen- 
eral, such  ratification,  to  bind  the  principal,  must  be  made 
with  full  knowledge ;  but  when  the  principal  relies  on  the 
contract  made  by  his  unauthorized  agent,  as  a  basis  of  re- 
covery, he  thereby  adopts  the  contract,  and  cannot  escape 
the  consequences  bv  showing  that  he  was  not  fuUy  informed 
of  its  terms  and  conditions.' 

§  602.  Notice  to  Attorneys  —  Breaeli  of  Confidence  to 
Disclose.— It  seems  to  be  quite  generally  conceded  that 
where  knowledge  of  a  fact  is  acquired  by  an  attorney 
wliile  in  the  course  of  the  discharge  of  his  duties,  under 
circumstances  that  would  render  it  a  breach  of  professional 
confidence  for  him  to  communicate  the  fact  to  another 
client,  or  to  take  advantage  of  such  knowledge  to  promote 
the  interests  of  the  other  client,  the  knowledge  of  the  at- 
torney would  not  be  imputed  to  his  client,  from  whom  it 
was  so  withheld.* 


1  Hovey  v.  Blanchai'd,  13  N.  H.,  145. 

-Jennings  v.  Moore,  2  Vern.,  609. 

'Henderhen  v.  Cook,  66  Barb.,  21. 

*  Hood  V.  Fahnestock,  8  Watts,  489 ;  MoCormick  v.  Wheeler,  36  HI,,  115. 


NOTICE   TO   AN   AGENT.  399 

§  693.  Executor  and  Administrator. —  It  has  also  been 
held  that  in  order  to  charge  an  executor  or  administrator 
with  notice  of  a  fact  affecting  the  interests  of  the  estate  of 
decedent,  the  knowledge  must  be  acquired  after  his  apjDoint- 
ment,  at  least  not  during  the  life-time  of  decedent.^  But 
under  the  later  and  better  authorities,  both  Eno-lish  and 
American,  we  have  seen  that  this  restriction  can  only  oper- 
ate to  weaken  the  presumption  of  notice  from  knowledge 
previously  acquired,  and  will  depend  upon  the  length  of 
time  intervening.^ 

§  694.  Knowledge  of  Trustee  Before  Creation  of  the 
Trust. —  This  rule  has  been  applied,  with  the  restriction 
as  to  time,  to  cases  where  it  was  souo;ht  to  charo-e  with 
notice  the  cestuis  que  trust,  or  beneficiaries  in  deeds  of  trust, 
by  proving  notice  to  their  trustees.^  The  case  first  cited  in 
the  note  is  one  of  those  in  which  the  general  principle  is 
seized  upon  to  negative  the  inference  that  knowledge  ac- 
quired by  the  trustee  long  before  there  was  any  thought  of 
the  deed  of  trust  was  present  to  his  recollection  when  he 
became  the  trustee,  and  so  leave  the  principal  an  avenue  of 
escape  from  the  consequences  of  his  trustee's  knowledge. 
Had  the  same  general  restriction  been  applied  to  the  case 
of  Myers  v.  Eoss,*  the  prior  incumbrancer  would  have  been 
defeated  in  a  case  where  notice  of  the  prior  incumbrance 
was  given  one  day,  and  the  party  notified  was  made  trustee 
in  the  subsequent  deed  of  trust  of  the  same  property  on 
the  next.  In  fact,  under  a  strict  adhesion  to  this  restriction, 
beneficiaries  could  never  be  charged  with  notice  of  prior 
incumbrances  by  bringing  home  knowledge  to  their  trustees ; 
for,  as  they  do  not  become  trustees  until  the  execution  of 
the  deed  by  which  the  trust  is  created,  it  would  be  impossi- 

1  Gold  V.  Death,  Hobart,  92 ;  Henry  v.  Morgan,  2  Binney,  497. 

2  Supra,  §  687  et  seq. 

3  Willis  V.  Vallette,  4  Mete.  (Ky.),  186;  Henry  v.  Morgan,  2  Bin.,  497; 
WUles  V.  GreenhiU,  4  De  G.,  F.  &  J.,  147,  150;  Myers  v.  Ross,  3  Head, 
59 ;  supra,  §  676. 

4  3  Head  (Tenn.),  60 ;  supra,  §  676. 


400  PRINCIPAL   AND   AGENT. 

ble  for  them  to  receive  the  notice  until  it  had  become  too 
late  to  communicate  it  with  any  effect. 

§  695.  Notice  of  Torts  of  Agents  and  Servants. —  No- 
tice by  which  the  liabihty  of  a  partj'^  for  a  tort  is  fixed 
may  come  through  the  agent,  with  like  effect  as  when  com- 
municated directly  to  the  principal.  As  where  the  superin- 
tendent of  a  street  railway  was  notified  of  the  misconduct 
of  an  employee  of  the  company  toward  a  passenger,  the 
knowledge  thus  acquired  by  the  agent  was  regarded  as  the 
knowledge  of  the  principal  and  was  held  sufficient  to  fix 
the  company's  Hability  for  exemplary  damages  on  account 
of  such  misconduct,  when,  after  such  notice,  the  act  of  the 
employee  was  approved.'  So  where  a  servant  had  charge  of 
his  master's  vicious  dog,  the  master  having  no  knowledge  of 
the  animal's  dangerous  disposition,  was  held  liable  for  in- 
juries committed  by  him,  upon  the  ground  that  the  servant's 
knowledge  was  equivalent  to  notice  to  the  master.-  So,  also, 
in  an  action  for  damages  for  the  burning  of  plaintiff's  prop- 
erty by  sparks  escaping  from  the  chimney  of  defendant's 
mill,  it  was  held  that,  in  the  absence  of  the  mill  owner,  no- 
tice of  the  dangerous  condition  of  the  chimney  to  the  fore- 
man in  charge  was  equivalent  to  notice  to  his  employer.' 

iMalick  V.  Tower  Grove  &  Lafayette  R.  R.  Co.,  57  Mo.,  17. 
2  Baldwin  V.  CasseUa,  L.  R.,  7  Ex.,  325;  ante,  §  480i. 
3Hoyt  V.  Jeffers,  30  Mich.,  181;  anfe,  §  480fc. 


NOTICE   BY   Alf  AGENT.  4:01 


III.    KOTICE   BY   AN    AgENT. 

§  696.  Has  the  Same  Force  as  When  Given  by  Principal. 

697.  Notice  of  Dishonor  of  Comniei-cial  Paper. 

698.  Notice  to  Quit. 

699.  Written  or  Verbal. 

700.  Effect  of  Subsequent  Ratification. 

701.  Notice  Unauthorized  AVhen  Given,  Valid  Only  from  Time  of  Rat- 

ification. 

§  696.  Has  the  Same  Force  as  When  Given  by  Princi- 
pal.—  In  most  instances  where  notice  is  necessary  to  fix  the 
liabilit}^  of  a  party,  or  where  such  liabihty  may  be  altered, 
modified  or  discharged  by  notice,  such  notice  may  be  com- 
municated by  an  agent,  -with  the  same  efi'ect  as  when  given 
by  the  principal.  In  order  to  determine  the  validity  of  a 
notice  given  by  an  agent,  it  is  often  an  important  matter 
of  inquiry  whether  the  giving  of  the  notice  is  within  the 
scope  of  the  agent's  powers.  The  same  principles  that 
govern  the  giving  of  notice  to  an  agent  so  as  to  bind  his 
principal^  will  not  always  apply  to  the  notice  given  hy  an 
agent  so  as  to  bind  the  party  notified.  For  the  purpose  of 
affecting  a  purchaser  with  notice  of  any  defect  of  title  or 
secret  equity  with  respect  to  the  thing  purchased,  it  is  not 
always  necessary  to  establish  the  relation  of  principal  and 
agent  between  his  informant  and  the  vendor.  It  is  in  most 
cases  sufficient  to  prove  that  the  information  was  commu- 
nicated by  some  one  whose  situation,  or  relations  to  the 
parties,  were  such  as  to  render  it  incumbent  upon  the  pur- 
chaser to  heed  the  warning.^  ISTevertheless,  one  contemplat- 
ing a  purchase  may  disregard  mere  idle  and  vague  rumors 
respecting  the  property,  which  have  no  authoritative  foun- 
dation whatever. 

§  697.  Notice  of  Dishonor  of  Commercial  Paper. —  For 
reasons  peculiar  to  the  law  governing  negotiable  instru- 
ments, and  which  are  entirely  disconnected  with  the  law  of 

1  Ante,  II,  Notice  to  an  Agent. 
^Ante,  §  27  e^  seg. 
26 


402  PRINCIPAL    AND    AGENT. 

agency,  notice  of  the  dishonor  of  a  note  or  bill,  when  given 
by  any  one  of  the  parties  to  such  instrument  who  had  be- 
come Hable  thereon,  may  be  taken  advantage  of  by  the 
others.^  It  seems,  also,  that  notice  of  dishonor  may  be 
given  by  any  party  to  a  bill,^  without  regard  to  his  own 
liability.  Eut  where  such  notice  is  permitted  to  be  given 
effectually,  by  one  not  contingently  liable  as  indorser  or 
drawer,  the  notice  is  supported  upon  the  ground  that  the 
party  giving  it  acted  as  the  agent  of  the  party  whose  duty 
it  was  to  give  notice.'  It  is  quite  certain,  however,  that  an 
agent  in  whose  hands  the  paper  has  been  placed  for  pres- 
entation may  give  notice  of  its  dishonor,  either  in  his  own 
name,  or  as  agent  of  the  real  holder.^ 

§  698.  Notice  to  Quit. —  But  when  an  estate  or  right  is 
to  be  determined  or  aifected  by  notice  to  the  party  in  whom 
the  same  is  vested,  whether  such  notice  be  stipulated  for  by 
contract  or  be  required  by  law,  it  must  come  from  the  party 
who,  by  law  or  the  terms  of  the  contract,  is  clothed  with 
the  power  of  terminating  the  estate,  or  affecting  the  right 
in  this  manner,  or  from  his  duly  authorized  agent?  Of  this 
character  are  notices  to  quit,  from  landlord  to  tenant.  The 
reasons  why  the  tenant  could  not  safely  respond  to  a  notice 
to  quit  from  an  unauthorized  person  are  so  plain  as  not  to 
require  explanation.  He  is  entitled  to  such  notice  as  he  may 
act  upon  with  the  assurance  that  the  landlord  desires  to 
terminate  the  tenancy,  and  this  can  only  be  by  a  notice 
coming  from  some  one  with  authority  from  the  landlord 
himself ;  ^  although  it  has  been  held  unnecessary,  where  such 

1  Chapman  V.  Keane,  3  Ad.  &  Ell.,  193;  Jameson  v.  Swinton,  2  Camp., 
373;  Batchelor  u.  Priest,  13  Pick.,  399,    See  §  703,  ch.  X. 

23  Kent's  Com.,  108. 

8  2  Daniel  on  Negot.  Inst.,  §991;  Mt.  Pleasant  Bank  v,  McLeran,  26 
la.,  306;  Glasgow  v.  Pratte,  8  Mo.,  336. 

*Bank  of  State  of  Mo.  v.  Vaughan,  36  Mo.,  90;  Fulton  v.  McCracken, 
18  Md.,  528;  Burke  v.  McKay,  2  How..  66;  Woodthorpe  v.  Lawes,  2  M. 
&W.,  109.    See  §  714  ef  seg. 

5Goodtitle  v.  Woodward,  3  B.  &  Aid.,  689, 

«  Right  V.  Cuthell,  5  East,  491. 


NOTICE    BY   AN   AGENT.  403 

notice  was  given  by  an  agent  of  the  landlord,  that  the  ten- 
ant should  have  evidence,  satisfactory  to  himself,  that  the 
one  assuming  to  act  as  agent  was  authorized  to  give  the 
notice.' 

§  699.  Written  or  Yerbal. —  As  to  the  manner  of  giving 
notice  to  quit,  this  will  be  more  fully  treated  in  another 
chapter;-  but  where  written  notice  is  not  required  when 
given  by  the  landlord  in  person,  verbal  notice  will  be  equally 
good  from  the  agent.""* 

§  700.  Effect  of  Subsequent  Ratification. —  There  does 
not  seem  to  be  entire  harmony  between  the  authorities  as 
to  the  curative  effect  of  ratification  upon  notice  given  by 
one  falsel}''  assuming  to  act  as  agent  of  the  landlord.  As  a 
general  rule,  subsequent  ratification,  as  we  have  seen,  when 
made  with  knowledge  of  all  the  circumstances,  will  render 
binding  upon  the  principal  either  the  acts  of  an  unauthor- 
ized agent  or  the  unauthorized  acts  of  an  agent.*  The  same 
principle  will  apply  to  the  acts  of  an  agent  in  giving  notice 
to  quit,  so  far  as  it  is  calculated  to  bind  the  landlord  who 
ratifies  it ;  but  whether  such  subsequent  ratification  should 
render  the  notice  retroactive,  so  as  to  bind  the  tenant,  raises 
quite  a  different  question.  In  some  of  the  cases,  however, 
it  seems  to  be  held  that  even  a  suit  founded  upon  such 
notice  will  be  sufficient  ratification  to  render  the  notice 
good  though  given  by  one  who  acted  without  authority.® 
But  both  the  weight  of  authority  and  the  better  reason  are 
the  other  way.  In  the  case  of  Right  v.  Cuthell,"  where  the 
power  of  determining  a  lease  by  notice  was  in  three  per- 
sons, to  be  exercised  jointly,  only  two  of  whom  signed  the 
notice,  it  was  decided  not  to  be  good,  and  being  a  notice 

1  Roe  V.  Pierce,  2  Camp.,  96;  Brahn  v.  Jersey  City  Forge  Co.,  38  N.  J. 
L.,  74. 

2  Ante,  ch.  Vm,  part  III. 

3 Roe  V.  Pierce,  2  Camp.,  96. 

<  Ante,  §§  667,  668. 

sGoodtitle  v.  Woodward,  3  B.  &  Aid.,  689;  Roe  v.  Pierce,  2  Camp.,  99. 

6  5  East,  491. 


404:  PKINCIPAL   AXD   AGENT. 

which  the  tenant  was  to  act  upon  at  the  time,  a  subsequent 
ratification  by  the  other  person  would  not  render  it  valid  by 
relation.  The  notice  was  held  bad  for  uncertainty,  as  the 
tenant  would  not  know  whether  to  quit  or  not  until  after 
the  ratification. 

§  701.  Notice  Unauthorized  When  Given,  Valid  Only 
from  Time  of  Ratification. —  This  principle  would  apply 
with  still  greater  force  where  the  landlord  is  required  to 
give  notice  for  a  stated  number  of  days.  In  such  case  the 
prescribed  time  should  elapse,  not  only  subsequent  to  the 
giving  of  the  notice  and  the  ratification,  but  also  between 
notice  of  such  ratification  and  the  time  fixed  for  quitting. 
"Where  the  notice  is  unauthorized  when  given,  it  can  only 
be  considered  valid  from  the  time  it  is  ratified  by  the  prin- 
cipal.^ And  though  in  a  recent  American  case  it  was  held 
not  to  be  necessary  that  the  agent  should  have  express 
authority,  in  order  to  bind  the  tenant  by  notice,  yet  such 
authority  should  be  at  least  inferred  from  the  concurrence 
of  the  principal;  and  if  the  giving  of  the  notice  was  an 
unauthorized  act,  a  subsequent  assent  on  the  part  of  the 
landlord  would  not  operate  by  relation  to  render  it  good.^ 

iDoe  V.  Walters,  10  Bam.  &  Cres.,  626;  Doe  v.  Goldwin,  2  Ad.  &  Ell., 
143. 
2Brahn  v.  Jersey  City  Forge  Co.,  38  N.  J.  L.,  74. 


CHAPTEK  X. 

NOTICE  OF  DISHONOR  OF  COMMERCIAL  PAPER, 

I.  By  Whom  Given. 
II.  To  Whom  Given. 

III.  Time  of  Giving  Notice. 

IV,  jManner  and  Mode. 
V.  Waiver  and  Excuse. 

I.  By  Whom  JS^gtice  May  be  GrvEir. 

i  702.  Generally  it  Must  be  by  Holder. 

703.  By  Any  Party  to  the  Instrument. 

704.  Criticism  of  Authorities  by  Judge  Story. 

705.  Party  Discharged  Becomes  a  Stranger. 

706.  Party  Not  Notified  Not  Immediately  Discharged, 

707.  Doctrine  Declared  by  Chitty. 

708.  Notice  Given  by  Party  Before  Received. 

709.  General  Acceptance  of  the  Above  Doctriae. 

710.  Notice  by  Acceptor. 

711.  By  Acceptor  Supra  Protest. 
713.  By  Drawee  of  BiU. 

713.  By  Maker  of  Note. 

714.  By  an  Agent. 

715.  By  Agent  for  Collection,  or  by  Notary. 

716.  Holder,  to  Give  Notice,  Need  Not  be  Owner. 

717.  By  Successive  Agents,  to  Each  Other. 

718.  Signing  Wrong  Name  Wni  Not  Affect  Notice  from  Proper  Party. 

719.  Otherwise  Where  Attorney  Has  No  Authority  by  Party  Whose 

Name  is  Used. 

720.  Authority  to  Give  Notice  Imi^lied. 

721.  Holder  as  Security  May  Give  Notice. 

722.  Notice  from  Stranger  Adopted  by  Holder. 

723.  Party  Giving  Notice  May  Have  No  Knowledge  at  Timeii 

724.  Notice  by  Executor. 

725.  By  Assignee  in  Bankruptcy. 

726.  When  by  the  Bankrupt. 

727.  By  Guardian  or  Ward. 

728.  By  Married  Woman. 


40G  NOTICE    OF    DISnOXOK    OF    COMMEKCIAL    PAPEK. 

§702.  (jieuerallj'  it  Must  be  by  Holder. —  In  general, 
the  notice  of  dishonor  of  negotiable  paper  comes  in  the  fii-st 
instance  from  the  holder  at  the  time  of  demand  and  refusal 
of  payment,  or  presentment  for  acceptance,  and  refusal  by 
the  drawee  to  accept.^  It  has,  indeed,  been  laid  down  as  a 
rule,  that  in  order  to  bind  antecedent  parties,  the  notice 
should,  in  every  instance,  come  from  the  holder  in  whose 
hands  the  instrument  was  dishonored.-  The  doctrine  an- 
nounced in  this  case  was  approved  by  Lord  Eldon  in  the 
subsequent  case  of  Ex  parte  Barclay.^  The  reasons  given  for 
thus  deciding  the  latter  case  were,  substantially,  that  the 
holder  was  the  only  one  who  could  rely  upon  the  others  for 
payment,  and,  consequently,  notice  from  one  who  was  not  in 
a  position  to  avail  himself  of  the  Hability  of  an  antecedent 
party,  could  not  authoritatively  advise  the  party  notified 
that  he  was  held  to  the  terms  of  his  contract.  In  other 
words,  if  A.  were  the  holder  of  a  bill,  acceptance  of  which 
was  refused,  and  B.  was  his  immediate  indorser,  in  case  no- 
tice of  the  dishonor  was  given  by  B.  to  the  drawer,  A.  could 
not  avail  himself  of  such  notice  in  order  to  hold  the  drawer, 
because  B.  would  have  no  authority  to  say  to  the  drawer 
that  A.  rehed  upon  him  for  payment. 

§  703.  By  Any  Party  to  the  Instrument. —  But  directly 
in  conflict  with  the  authorities  cited  above,  are  the  cases  of 
Jameson  v.  Swinton,*  and  Wilson  v.  Swabey,^  in  both  of 
which  the  doctrine  is  laid  down,  that  notice  coming  from 
any  antecedent  party  to  the  instrument  wiU  enable  the 
holder  or  subsequent  indorser  to  hold  the  party  notified 
either  as  draAver,  or  upon  his  contract  of  indorsement.  Upon 
the  authority  of  the  cases  last  cited.  Lord  Denmaj^  took  oc- 
casion to  review  Tindal  v.  Brown,^  and  expressly  overruled 

1  Walker  r.  Bank  of  the  State,  8  Mo.,  704 ;  Gindrat  v.  Mechanics'  Bank, 
7  Ala.,  324. 

2  Tindal  v.  Brown,  1  T.  R.,  164. 
37  Ves.,  597. 

<2  Camp.,  373. 
*1  Stark.,  34. 
•  1  T.  R.,  164. 


BY   WHOM   GIVEN.  iUT 

the  case,  declaring  the  doctrine  therein  promulgated  not  to  be 
good  in  law.^  In  this  case  the  plaintiff  had  indorsed  a  bill 
upon  which  defendant  was  antecedently  liable,  and  the  in- 
dorsee of  plaintiff  was  the  holder  of  the  bill  when  it  reached 
maturity.  The  holder  left  the  bill  in  the  hands  of  plaintiff's 
clerk  with  instructions  to  present  the  same,  and,  in  case  of 
non-payment,  to  give  notice  of  dishonor.  The  bill  was  duly 
presented,  payment  refused,  and  the  clerk,  instead  of  giving 
notice  to  the  plaintiff  and  to  the  defendant,  in  the  name  of 
the  holder,  by  w^hom  he  was  authorized  to  act,  simply  gave 
notice  to  defendant,  in  the  name  of  the  plaintiff — the  last 
indorser.  Plaintiff  subsequently  took  up  the  bill,  and  in 
the  action  brought,  it  was  held,  in  opposition  to  the  rule 
announced  in  the  overruled  case,  that  the  notice  was  suf- 
ficient, notwithstanding  it  was  not  from  the  holder  at  the 
time  such  notice  was  given. 

§  704.  Criticism  of  Authorities  by  Judge  Story.  — Mr. 
Bay  ley,  in  his  work  on  Bills,^  attempts  to  limit  the  applica- 
tion of  the  above  doctrine  to  cases  where  the  party  from 
Avhom  the  notice  comes  is  himself  bound  to  pay  the  bill  or 
note.  Judge  Story  cites  Mr.  Bayley  with  approval,  and 
objects  to  the  breadth  of  statement  employed  in  most  of 
the  cases,  as  intimating  that  notice  by  parties  would  be  suf- 
ficient, regardless  of  the  fact  that  they  might  not  themselves 
be  liable  to  pay  the  same,  or  be  entitled  to  reimbursement.' 
Says  the  learned  author  in  this  connection,  "  Suppose,  for 
example,  a  second  indorser  should  give  notice  to  a  first  or 
third  indorser,  having  received  none  himself,  and  therefore 
not  being  bound  to  pay  the  note,  and  the  holder  has  not 
given  any  notice  whatsoever  to  any  of  the  indorsers,  the 
question  in  such  a  case  would  arise,  w^hether  the  notice  was 
available  in  favor  of  the  holder.  Suppose  the  last  indorser 
has  received  no  notice  from  the  holder,  and  is  therefore  dis- 
charged, would  notice  by  him  to  the  prior  indorsers  be 
available  for  the  holder  ?  " 

1  Chapman  v.  Keane,  3  Ad.  &  Ell.,  193. 

2  Bayley  on  BUls,  248. 

3  Story  on  Prom.  Notes,  §  303,  citing  Bayley  on  Bills  (5th  ed.),  254. 


408  NOTICE   OF   DISHONOR   OF   COMMERCIAL   PAPER. 

§  705.  Party  Discharged  Becomes  a  Stranger. —  It  is 

conceded  on  all  sides  that  the  notice  must  emanate  from  a 
part}''  to  the  bill,  and  many  of  the  earher  authorities,  both 
English  and  American,  hold  that  it  must  come  from  a  party 
who  can  give  the  drawer  or  indorser  his  immediate  remedy 
on  the  bill;  otherwise  it  is  merely  a  historical  fact.'  But 
the  rule  that  notice  must  come  from  a  party  to  the  bill  is 
only  confused  by  insistence  upon  the  doctrine  that  notice 
cannot  be  effectually  given  to  a  prior  indorser  by  a  subse- 
quent indorser  who  has  been  discharged.  For  when  an  in- 
dorser has  been  discharged  from  hability  on  the  bill  or  note 
by  failure  to  give  him  the  requisite  notice,  he  ceases  to  be  a 
party,  and  becomes  a  stranger  to  the  instrument.- 

§  706.  Party  Not  Notified  Not  Immediately  Discharged. 
Nevertheless,  the  indorser  who  has  not  been  notified  of  the 
dishonor  of  the  paper  upon  which  he  is  liable,  is  i^ot,  ij^so 
facto,  discharged,  as  appears  to  be  assumed  in  the  suppositi- 
tious case  stated  by  Judge  Story."  He  must  not  only,  in 
order  to  be  discharged,  not  have  received  notice  of  the  dis- 
honor, but  the  time  must  have  elapsed  within  which  he 
could  have  been  legally  notified.  Until  then  his  contingent 
liability  continues,  and,  according  to  the  rule  laid  down  by 
Lord  Denman,*  as  well  as  numerous  English  and  American 
decisions  made  in  pursuance  thereof,  he  may  give  notice  to 
all  prior  parties,  and  bind  them  as  effectually  as  though  he 
had  been  the  holder  at  the  time  of  dishonor,  or  had  been 
duly  notified  previous  to  his  giving  notice  to  prior  parties.* 

§  707.  Doctrine  Declared  by  Chitty. —  In  his  valuable 
work  on  Bills  of  Exchange,  Mr.  Chitty  deduces  from  the 
authorities  the  rule  that  the  notice  will  be  by  the  proper 
person  if  given  by  any  person  Avho  is  a  party  to  the  bill,  and 

>  Lord  Ellenborougb,  in  Stewart  v.  Kennett,  2  Camp.,  177;  Hopes  v. 
Alder,  6  East,  16;  Stanton  r.  Blossom,  14  Mass.,  116. 

-2  Daniel  on  Negot.  Inst.,  42. 

3  Supra,  §  704. 

*  Chapman  v.  Keane,  supra,  §  703. 

5  Riddle  v.  MandevUle,  5  Cranch,  322;  Crocker  v.  Getcliell,  23  Me., 
392;  Stafford  v.  Yates,  18  Jolms.,  327;  Glasgow  v.  Pratte,  8  Mo.,  336; 
Glasscock  v.  Bank  of  Mo.,  id.,  443;  Batchelor  v.  Priest,  13  Pick.,  399. 


'  BY   WHOM   GIVEN.  409 

•who  would  be  entitled  to  reimbursement  after  paying  the 
same;  and  the  object  of  the  notice  being  to  enable  the  par- 
ties to  have  recourse  to  the  maker,  acceptor  or  drawer,  it 
makes  no  difference  from  which  one  of  the  parties  the  no- 
tice is  received,  it  wiU  inure  to  the  benefit  of  aU  antecedent 
parties,  and  render  any  further  notice  from  them  unneces- 
sary.^ Tiie  same  view  is  taken  by  Mr,  Thompson,-  by  whom 
it  is  regarded  as  settled  that  notice  from  any  party  to  the 
bill  will  be  sufiicient  if  it  conforms  in  other  respects  to  the 
requirements  of  the  law,  and  when  given  by  the  last  in- 
dorser  to  the  first,  or  to  the  drawer,  wiU  inure  to  the  benefit 
of  all  intermediate  parties.^ 

§  708.  Notice  Given  l)y  Party  Before  Received. — Where 
an  indorser  notifies  prior  parties  before  he  has  himself  re- 
ceived formal  notice,  the  later  authorities  seem  to  regard  his 
action  a^  a  virtual  waiver  of  formal  notice,  or  an  acknowl- 
edgment of  his  own  liability,  and  consequently,  should  the 
notice  never  afterwards  be  given  him,  this  will  not  affect 
the  hability  of  any  prior  party  to  whom  he  gave  notice  be- 
fore the  expiration  of  the  time  within  which  he  should  have 
been  notified  of  the  dishonor.  The  notice  being  from  a 
proper  party  fixes  the  liability  of  the  party  to  whom  it  is 
given,  and  he  can  only  be  released  by  the  voluntary  act  of 
each  of  the  parties  to  whom  he  is  liable.  It  will  not  be 
contended,  however,  that  any  party  to  negotiable  paper 
who  has  been  discharged  for  the  want  of  notice  can,  by 
subsequent  waiver,  reassume  his  hability  on  the  instrument 
so  as  to  affect  antecedent  parties  with  notice  which  he  gives 
after  his  own  discharge.^ 

§  709.  General  Acceptance  of  the  Above  Doctrine.— 
Notwithstandmg  the  modifications  by  which  some  of  the 

1  Chitty  on  BiUs,  237. 

2  Thompson  on  Bills,  sec.  IV.  p.  496. 

3 See,  also,  2  Daniel  on  Negot.  Inst.,  §  987;  Stafford  t>.  Yates,  18 
Johns.,  327;  Batchelor  u.  Priest,  12  Pick.,  406;  Stanton  v.  Blossom,  14 
Mass.,  116;  Renshaw  v.  Tiiplett,  23  Mo.,  213;  Swayze  v.  Britton,  17 
Kans.,  627. 

*  See  post,  §  776  et  seq. 


410  NOTICE   OF   DISHONOR   OF   COMMEBCIAL   PAPER. 

earlier  English  and  American  authorities  have  sought  to  re- 
strict tlic  application  of  the  doctrine,  that  any  party  to  a 
note  or  bill  may  give  the  notice  by  which  an  antecedent 
party  may  be  held  liable  to  subsequent  parties,  the  English 
cases  by  which  the  doctrine  was  first  laid  down  have  been 
followed  in  both  countries,  until  it  has  become  quite  firmly 
established.^ 

§  7 10.  Notice  by  Acceptor. —  Following  these  authorities, 
it  has  been  decided  that  where  a  bill  of  exchange  was 
dishonored  when  presented  for  payment,  notice  of  such  dis- 
honor, given  by  the  acceptor,  would  bind  the  prior  parties 
to  whom  the  same  was  given,  as  effectually  as  though  it  had 
come  from  the  holder,  or  a  subsequent  iudorser,  although, 
in  the  same  case,  the  principle  was  fully  recognized  that 
notice  from  a  mere  stranger  would  not  be  sufficient.^ 

§  711.  By  Acceptor  Supra  Protest. —  So,  in  the  case  of 
Union  Bank  v.  Grimshaw,'^  where  the  acceptor,  on  the  day 
the  bills  matured,  addressed  a  letter  to  the  drawer  inform- 
ing him  that  they  mu^t  go  back  protested,  this  was  held 
sufficient  notice  to  bind  the  drawer,  and  would  inure  to  the 
benefit  of  any  subsequent  party  who  sought  to  avail  himself 
of  it.  So,  also,  in  the  case  of  Konig  v.  Bayard,^  Chief  Jus- 
tice Marshall  recognized  the  validity  of  notice  from  an 
acceptor,  siqyra  protest. 

§  712.  By  Drawee  of  Bill. —  Upon  the  same  principle  as 
the  foregoing,  it  was  held,  in  Mt.  Pleasant  Bank  v.  McLeran,^ 
that  where  the  bill  was  not  accepted,  notice  from  the  drawee 
would  be  as  effectual  as  from  a  party  liable  to  pay  the  same, 
and  entitled  to  reimbursement  from  the  prior  party  notified. 
This  case,  however,  involved  the  further  question  of  agencij 
in  the  party  giving  the  notice,  though  such  notice  might 

1  See  cases  cited  infra;  Butler  v.  Duval,  4  Yerg.,  265;  Bank  of  United 
States  V.  Gocldard,  5  Mason,  366. 
^Brailsford  v.  Williams,  15  Md.,  150;  Rosher  v.  Kieran,  4  Camp.,  87. 
3 15  La.,  321. 
n  Pet.,  250. 
5  26  Iowa,  306. 


BY    WHOM    GIVEN.  411 

well  have  been  held  good  without  it  appearing  that  the 
drawee,  from  whom  it  came,  acted  as  the  agent  of  the 
holder,  for  whose  benefit  such  notice  was  given. 

§  713.  By  Maker  of  Note. —  It  was  also  decided,  in  the 
case  of  Glasgow  v.  Pratte,^  which  is  cited  with  evident  ap- 
proval in  First  National  Bank  v.  Ryerson,^  that  w^here  a 
negotiable  promissory  note  was  dishonored,  the  maker  could 
give  notice  thereof  so  as  to  bind  prior  indorsers,  and  render 
them  liable  to  subsequent  parties  to  the  instrument. 

§  714.  By  an  Agent. —  A  notice  given  by  the  agent  of 
any  party  to  the  bill  or  note  will  be  as  effectual  as  if  given 
by  the  party  himself.*  KvA  such  agent  need  not  have  been 
empowered  expressly  for  the  purpose  of  giving  such  notice. 
Where  the  instrument  has  been  intrusted  to  a  banking  in- 
stitution for  collection,  the  notice  of  dishonor  may  be  given 
by  the  bank,  or  any  of  its  officers.*  And  this  principle  has 
been  carried  to  the  extent  of  imposing  the  giving  of  notice 
of  dishonor  upon  such  banks,  as  a  duty  implied  from  the 
nature  of  the  undertaking  on  their  part  to  collect.  For 
non-feasance  in  this  particular,  the  holder  has  been  held  en- 
titled to  maintain  assumpsit  against  the  bank.^ 

§715.  By  Agent  for  Collection,  or  by  Notary.— Any 
agent  authorized  to  demand  payment  may  give  the  notice, 
whether  such  agent  be  authorized  and  empowered  thereto 
by  written  letter  of  attorney  or  by  verbal  appointment.® 
The  notary  in  whose  hands  the  instrument  has  been  placed 
for  presentment  or  demand,  and  with  authority  to  formally 

1 8  Mo.,  336. 

2  231a.,  508. 

sCoppertliwaite  v.  Sheffield,  1  Sanf.,  416;  Hazlett  r.  Poultney,  1  Nott 
&,  M.,  466;  Tunno  v.  Lague,  2  Johns.  Cas.,  1 ;  Bank  of  Cape  Fear  v.  Sea- 
well,  2  Hawks  (N.  C),  560;  Mead  v.  Engs,  5  Cow.,  303;  Payne  v.  Patrick, 
21  Tex.,  680;  Greene  v.  Farley,  20  Ala.,  322;  Bank  of  State  v.  Vaughan, 
36  Mo.,  90. 

♦Freeman's  Bank  v.  Perkins,  18  Me.,  292;  AVorden  v.  Nourse,  36  Vt., 

756. 

sSmedes  v.  Utica  Bank,  20  Johns.,  372. 
6  Sussex  Bank  v.  Baldwin,  17  N.  J.  L.,  487. 


412  NOTICE   OF   DISHONOR   OF   COMMERCIAL   PAPER. 

protest  the  same  in  case  of  dishonor,  is  such  a  holder  of  the 
paper  as  may  give  the  notice,  whether  the  instrument  is 
one  requiring  formal  protest  or  not.^ 

§  7 1 6.  Holder,  to  Give  Notice,  Need  Not  be  Owner.— 
Even  where  it  is  required  that  the  notice  shall  come  from 
tlie  holder,  it  is  not  necessary  that  he  shall  be  the  owner  of 
the  paper  dishonored.  Where  he  is.  merely  a  holder  for  col- 
lection, as  we  have  seen,  he  may  not  onl}^  give  notice  to 
antecedent  parties,  but  it  becomes  his  duty  to  do  so,  and 
the  same  degree  of  diligence  is  demanded  of  him  as  though 
he  were  a  holder  for  value.'^  And  it  is  equally  incumbent 
upon  such  agent  to  give  due  and  timely  notice  to  his  prin- 
cipal of  the  default  of  payment  or  failure  to  accept,  as  it 
would  be  upon  one  holder  for  value  to  give  notice  to  another. 
The  agent  or  holder  for  collection  has  the  same  time  within 
which  to  give  notice  to  the  real  holder,  as  to  any  other 
party  antecedently  liable.' 

§  717.  By  Successive  Agents,  to  Each  Other. —  As  the 
notice  may  be  transmitted  from  the  holder,  through  the 
several  indorsers,  in  the  inverse  order  of  their  indorsements, 
back  to  the  drawer,  aud  each  of  said  parties  is  entitled  to 
the  same  time,  and  may  employ  the  same  means,  and  give 
the  notice  in  the  same  maimer  and  mode  as  it  may  be  given 
by  the  holder,  however  circuitous  such  a  course  of  trans- 
mission may  be,  and  however  much  time  may  be  needlessly 
consumed  by  such  course ;  *  so,  where  the  paper  is  sent  for 
collection  to  several  banks  in  succession,  each  may  give 
notice  of  dishonor  to  the  antecedent  bank  from  which  it  was 

IBank  of  Utica  v.  Smith,  18  Johns.,  230;  Fulton  v.  Maccracken,  18 
Md.,  528;  Rennick  v.  Robbins,  28  Mo.,  339;  Bui-ke  v.  McKay,  2  How. 
(U.  S.),  66;  Chiu-ch  v.  Barlow,  9  Pick.,  547;  Howai-(l  v.  Ives,  1  Hill,  263. 

2Bartlett  v.  Isbell,  31  Conn.,  296. 

3Lawsonv.  Farmers'  Bank,  1  Ohio  St.,  206;  Scott  v.  Lifford,  9  East, 
347;  Langdale  v.  Trimmer,  15  id.,  291. 

<Triplett  v.  Hunt,  3  Dana,  126;  Renshaw  v.  Triplett,  23  Mo.,  213; 
"Whitman  v.  Farmers'  Bank,  8  Porter  (Ala.),  258 ;  Ogden  v.  Dobbin,  2 
Hall,  112;  McNeill  v.  Wyatt,  3  Humph.,  125;  HiU  v.  Planters'  Bank, 
id,,  670;  Eagle  Bank  v.  Hathaway,  5  Met.,  313. 


BY   WHOM   GIVEN.  413 

received,  and  so  on,  in  like  manner,  and  with  the  same 
effect,  as  they  might  were  they  holders  for  value.^ 

§  718.  Signing  Wrong  Name  Will  Not  Affect  Notice 
from  Proper  Party. —  Mere  error  in  giving  the  name  of 
the  principal,  by  whose  authority  the  agent  acts  in  notify- 
ing the  party,  will  not  vitiate  the  notice.  As  where  the 
plaintiff,  who  was  the  actual  holder  of  the  instrument  when 
it  was  dishonored,  gave  directions  to  his  attorney  to  notify 
defendant,  who  was  a  prior  indorser,  in  the  name  of  the 
last  indorser,  and  the  attorney  accordingly  addressed  a 
letter  to  the  defendant,  in  which  he  used  this  lancruao-e :  "  I 
am  instructed  by  Mr.  B.  (the  indorser)  to  give  you  notice," 
etc.,  signing  the  letter  with  his  own  name,  the  notice  was 
held  good,  as  coming  from  the  real  holder.^ 

§  7 1 9.  Otherwise  Where  Attorney  Has  No  Authority 
by  Party  Whose  Name  is  Used. —  However,  in  Harrison  v. 
Euscoe,^  where  the  attorney  gave  notice  to  a  prior  indorser, 
but  stated  therein,  b}^  mistake,  that  he  was  instructed  to  do 
so  by  one  from  whom  he  had  no  authority  whatever,  either 
to  demand  payment  or  to  give  notice,  it  was  held  that, 
although  this  mistake  would  not  vitiate  the  notice  alto- 
gether, it  would,  nevertheless,  have  the  effect  of  changing 
the  status  of  the  party  by  whose  authority  the  notice  was 
in  fact  given,  so  that  he  would  occupy  the  same  position 
towards  the  party  notified  as  would  have  been  occupied  by 
the  party  from  whom  the  notice  pm^ported  to  come,  had  he 
authorized  it;  and  any  defense  which  would  have  been 
available  against  such  party,  in  favor  of  the  one  receiving 
the  notice,  would  be  equally  good  against  the  party  at  whose 
instance  the  notice  was  given. 

§  7  20.  Authority  to  Give  Notice  Implied. —  Where  a  bill 
of  exchange  is  placed  in  the  hands  of  an  attorney  or  agent, 
with  authority  to  present  the  same  for  acceptance,  the 
authority  to  give  notice  of  a  failure  or  refusal  to  accept  is 

» aode  V.  Bayley,  13  M.  &  W.,  51. 
ZRogerson  v.  Hare,  W.,  W.  &  D.,  65. 
»15M.  &W.,  231. 


414:  NOTICE   OF   DISHONOR   OF   COMMERCIAL   PAPER. 

implied  from  the  authority  to  present,  and  it  has  been  held 
that  such  notice  may  be  given  by  the  attorney  or  agent  in 
his  own  name.' 
§  721.  Holder  as  Security  May  Gire  Notice. —  It  is  not 

even  essential  to  the  right  of  a  holder  of  negotiable  paper 
that  he  should  be  a  liolder  for  the  purpose  of  collection  or 
presentment.  One  who  holds  the  instrument  as  collateral 
security  for  a  debt,  not  only  may,  but  properly  should,  give 
notice  of  its  dishonor,  so  as  to  preserve  the  rights  of  his 
debtor  against  antecedent  parties.- 

§  722.  Notice  from  Stranger  Adopted  by  Holder. —  The 
rule  that  notice  from  a  mere  stranger  to  the  instrument  mil 
not  be  binding  upon  the  parties  to  whom  it  is  given,  is  con- 
siderably weakened  by  the  liberal  manner  in  which  the 
courts  seem  inclined  to  construe  the  authority  of  agents  by 
whom  notice  of  dishonor  is  frequently  given.  It  has  been 
held,  even  where  the  person  giving  the  notice  was  a  total 
stranger  to  the  bill,  but  who  represented  that  he  was  the 
real  holder,  that  such  notice  was  rendered  valid  and  binding 
upon  the  parties  to  whom  the  same  was  given,  by  the  real 
holder's  subsequent  ratification  of  the  acts  of  the  pretended 
holder."  A  case  can  hardly  be  imagined  where  the  circum- 
stances attending  the  act  of  intermeddling  by  the  self-styled 
holder,  or  a  pretended  agent,  would  be  resented  by  the  re- 
fusal of  the  party  so  signally  benefited  to  adopt  the  act 
which  was  necessary  to  save  him  from  pecuniary  loss. 

§723.  Party  Giving  Notice  M.ay  Have  No  Knowledge 
at  Time. —  It  is  of  no  consequence,  as  affecting  the  rights 
of  the  parties,  that  the  person  giving  the  notice  has  not,  at 
the  time,  either  knowledge  or  information  of  the  fact  that 
the  paper  has  been  dishonored.  If  the  language  of  the 
notice  is  sufficiently  positive  and  certain,  and  its  statements 
are  borne  out  by  subsequent  developments,  it  matters  not 
how  the  person  sending  the  notice  gained  the  knowledge 

1  Woodthorpe  v.  Lawes,  2  M.  «&  W.,  109. 

2  Peacock  v.  Parcel,  14  C.  B.,  N.  S.,  728. 
sLysaght  v.  Bryant,  2  Carr.  &  Kir.,  1016. 


BY   WHOM   GIVEN.  415 

imparted  by  the  notice,  nor  whether  he  knew  it  at  all.  This 
doctrine  is  fairly  illustrated  by  the  case  of  Jennings  v.  Rob- 
erts.^ Here  the  bill  had  been  indorsed  by  defendant  to 
plaintiff,  and  by  the  latter  to  a  country  bank.  It  was  ac- 
cepted, and  payable  in  London.  On  the  day  it  fell  due, 
plaintiff  saw  the  manager  of  the  country  bank,  by  whom 
he  was  informed  that  the  bill  would  be  back  from  London 
in  the  morning.  On  the  same  day,  this  information  was 
communicated  by  plaintiff  to  defendant,  with  a  demand  for 
the  money  to  meet  it.  Subsequently  it  transpired  that  the 
manager  did  not  know,  at  the  time  of  giving  the  informa- 
tion, that  the  bill  had  been  dishonored ;  but  such  proving  to 
be  the  case,  and  the  bill  being  returned  on  the  following 
day,  it  was  held  that  his  want  of  knowledge  did  not  vitiate 
the  notice,  so  long  as  the  fact  communicated  proved  true. 

§  724.  Notice  by  Executor. —  In  case  of  the  death  of  the 
holder,  or  other  party  from  whom  the  notice  should  emanate, 
it  should  be  given  by  his  executor  or  administrator  within 
a  reasonable  time  after  appointment,  in  case  of  the  latter.^ 
But  where  one  of  several  joint  owners  dies,  the  notice 
should  be  given  by  a  survivor  or  his  agent.* 

§  725.  By  Assignee  in  Bankruptcy. —  Where  the  holder 
has  been  declared  bankrupt,  the  notice  should  primarily  be 
given  by  the  assignee.  If  it  falls  due  subsequent  to  the 
assignment,  the  assignee  will  be  governed  by  the  same  rules 
as  to  time  as  parties  holding  in  their  own  right;  but  if  it  is 
dishonored  before  it  comes  to  his  hands,  he  would  probably 
be  allowed  a  reasonable  time  after  the  assignment  within 
which  to  give  notice. 

§  7  26.  When  by  the  Bankrupt. —  As  the  banki-upt  holder 
stands  in  privity  with  the  assignee,  has  an  interest  in  the 
note  or  bill,  and  represents  the  interests  of  his  own  estate 
until  the  selection  or  appointment  of  an  assignee,  notice 

1  29  Eng.  L.  &  Eq.,  118. 

'-'  White  V.  Stoddard,  11  Gray,  258;  Story  on  Prom.  Notes,  §  304. 

3  Evans  v.  Evans,  9  Paige,  178. 


41G  NOTICE   OF   DISnONOK   OF   COMMERCIAL   PAPER. 

from  the  bankrupt,  prior  to  such  appointment,  and  probably 
prior  to  the  assignment,  would  be  valid.^ 

§  727.  By  Guardian  or  Ward. — If  the  holder  be  an  in- 
fant, or  other  person  under  guardianship,  notice  from  either 
guardian  or  ward  would  be  sufficient. 

§  728.  By  Married  Woman. —  Where  the  holder  is  a 
feme  sole  at  the  inception  of  the  instrument,  but  marries  be- 
fore its  maturity,  notice  of  dishonor  should  be  given  by  her 
husband,  or  by  her,  with  his  consent,  express  or  implied ; 
but  notice  sent  by  her  would  probably  be  available  without 
direct  proof  of  consent  on  the  part  of  the  husband,  even 
where  the  common  law  disabilities  of  married  women  still 
prevail.-  And  where  the  note  is  given  to  a,  feme  covert,  the 
rule  will  probably  be  the  same  in  regard  to  notice.' 

1  Story  on  Prom.  Notes,  §  305. 

2Burrough  v.  Moss,  10  B.  &  C,  558;  McNeilage  v.  Halloway,  1  B.  & 
Aid.,  318;  Chitty  on  Bills,  23,  24,  26. 
sphUliskii'k  v.  PluckweU,  2  M.  &  S.,  893. 


TO   WHOM    GIVEN.  417 


II.  To  Whom  Given. 

§  729.  To  Drawers  and  Indorsers  —  Eeason  for  Rule. 

730.  Drawer  of  BiU. 

731.  Should  Not  be  Waived  by  Agent. 
733,  When  Not  Entitled  to  Notice. 

733.  Drawn  Upon  Partnership  by  Member  of  Finn. 

734.  Indorser. 

735.  Need  Not  be  Indorser  for  Value. 

736.  May  be  from  Any  Subsequent  Party. 

737.  Notice  of  Partial  Dishonor. 

738.  Indorsers  of  Over-due  Paper. 

739.  Illustration  of  Above. 

740.  Paper  Re-issued  by  Indorser. 

741.  Purchase  at  Indorser's  Request  —  Notice  Unnecessary. 

742.  Transfen-er  by  Delivery  Not  Entitled  to  Notice. 

743.  Notice  to  Agent. 

744.  Example  of  Authority  to  Receive  Notice. 

745.  Authority  May  be  Imjilied. 

746.  Question  of  Fact. 

747.  Agent  witli  General  Authority. 

748.  Appointed  Prior  to  the  War. 

749.  Example  Where  Authority  Not  Implied. 

750.  Not  Implied  from  Authority  to  Indorse. 

751.  Notice  to  Partners. 

752.  Indorsement  During  Partnership. 

753.  After  Dissolution. 

754.  To  Agent  of  One  of  the  Partners. 

755.  To  Surviving  Partner. 

756.  Exception  as  to  Partners  —  Manner  of  Service. 

757.  Joint  Indorsers  Not  Parties. 

758.  Agency  Not  Implied  from  Joint  Indorsement. 

759.  Consequences  of  Failure  to  Notify  Both  Joint  Indorsers. 

760.  Assumption  of  Authority  by  One,  for  All,  Binds  Him. 

761.  Circumstances  Admitting  Notice  to  Joint  Indorsers. 

762.  Joint  Administi-ators  Cannot  Tie  Their  Hands. 

763.  Notice  to  Personal  Representatives. 

764.  How  Notified  by  Letter. 

765.  Sufficient  When  Addressed  to  Deceased  Indorser. 

766.  Left  at  Last  Dwelling-place  of  Deceased. 

767.  Addressed  to  Indorser  Known  to  be  Dead. 

768.  To  One  of  Several  Personal  Representatives. 

769.  To  Assignee  in  Bankruptcy  or  to  Bankrupt. 

770.  Before  Selection  of  Assignee. 

27 


418  NOTICE    OF    DISHONOR   OF   COMMERCIAL   PAPER. 

§  771.  Bankruptcy  of  Acceptor  No  Excuse, 

772.  IMight  be  to  Bankrupt  After  Assignment. 

773.  To  Infant  Party. 

774.  MaiTied  Woman. 

775.  Drawer  or  Indorser  Insane. 

§729.  To  Drawers  and  Indorsers  —  Reason  for  the 
Rule. —  The  parties  who  are  entitled  to  notice  of  the  dis- 
lionor  of  a  bill  or  note  may  be  classed  under  the  general 
description  of  all  those  xoho  have  hecome  liahle  thereon,  either 
as  drawers  or  indorsers.  One  of  the  reasons  why  they  are 
entitled  to  such  notice  is,  that  it  is  implied  as  a  condition  of 
their  undertaking.  The  other  is,  that  upon  paying  and  tak- 
ing up  the  dishonored  instrument,  they  will  be  entitled  to 
reimbursement  at  the  hands  of  those  antecedently  liable. 
The  right  which  the  drawer  or  indorser  has,  when  there  has 
been  a  default  of  payment  by  the  drawer  of  a  bill  or  the 
maker  of  a  note,  to  discharge  his  own  liability  to  subsequent 
parties  by  payment  and  resort  to  prior  parties,  is  one  which 
the  law  merchant  guards  by  requiring  that  he  shall  receive 
prompt  notice  of  the  happening  of  the  event  which  may 
change  the  nature  of  his  contingent  liabilit}'"  to  that  which 
is  certain  and  fixed.  The  most  efficacious  method  of  secur- 
ing this  notice  is  that  adopted  by  the  law,  of  discharging 
from  liability  on  the  instrument  all  such  parties  to  whom  it 
is  not  given  in  due  tirae.^ 

§  730.  Drawer  of  Bill. —  Where  a  bill  of  exchange  is 
drawn  in  good  faith,  upon  the  custodian  of  funds  of  the 
drawer,  or  against  a  party  who  has  authorized  the  draft,  or 
who  rests  under  legal  obligation  to  honor  it,  the  drawer  has 
not  only  a  right,  as  against  the  drawee,  to  have  the  same 
paid,  but  as  he  has  undertaken  to  answer  to  any  subsequent 
party  that  it  will  be  so  paid ;  and  while  the  bill  is  on  the 
market,  he  treats  it  as  an  adjustment  pro  tanto  of  accounts 
between  the  drawee  and  himself,  he  has  an  equal  right,  as 
against  the  holder  at  maturity,  to  prompt  information,  in 
case  payment  is  refused.     And  what  may  be  said  of  pay- 

'  See  cases  cited  infra. 


TO   WHOM   GIVEN.  419 

raent  is  equally  true  of  acceptance,  where  the  bill  is  so 
drawn  as  to  require  presentment  for  that  purpose.^ 

§  731.  Should  Not  be  Waived  Iby  Agent. —  The  case  of 
Grosvenor  v.  Stone  -  illustrates  the  importance  of  a  punctil- 
ious insistence  upon  this  right.  Plaintiff  drew  a  bill  upon 
a  banker  who  had  authorized  the  draft  for  the  benefit  of 
defendant.  The  bill  was  accepted  by  the  drawer,  with  funds 
in  his  hands  to  meet  it.  After  acceptance  and  before  the 
maturity  of  the  bill,  the  acceptor  became  bankrupt,  and  the 
bill  was,  through  mistake,  paid  for  the  honor  of  one  not  a 
party  thereto.  There  was  a  failure  to  give  notice  of  dis- 
honor to  plaintiff,  who  nevertheless  allowed  judgment  to  go 
against  him  by  default,  and  then  sought  to  hold  defendant, 
for  whose  use  the  draft  was  drawn.  It  was  held  that  the 
circumstances  under  which  the  bill  was  drawn  entitled 
plaintiff  to  notice  of  its  dishonor,  and  though  he  acted  as 
defendant's  agent  in  the  transaction,  he  should  not  have 
waived  his  right  to  notice,  to  the  prejudice  of  his  principal, 
and  hence  could  not  recover. 

§  732.  When  Not  Entitled  to  Notice. —  Where,  however, 
the  drawer  has  no  good  reason  to  believe  that  the  draft  will 
be  honored,  as  when  he  knows  there  are  no  funds  in  the 
hands  of  the  drawee,  who  is  under  no  obligation  to  pay,  or 
where  he  has  himself  intercepted  the  funds  remitted  for 
that  purpose ; '  or  where  the  maker  has  made  an  assignment 
of  all  his  property  to  the  indorser;''  or  the  indorser  has 
otherwise  received  full  indemnity  from  the  maker  or  ac- 
ceptor; ^  or  the  drawer  knows  when  he  draws  the  bill  that 
the  drawee  is  bankrupt,  he  is  not  entitled  to  notice  from 
either  holder  or  indorser.® 

1  Grosvenor  v.  Stone,  8  Pick.,  79. 

2  8  Pick.,  79. 

3  Miser  v.  Trovinger,  7  Ohio  St.,  281 ;  Commercial  Bank  v.  Hughes,  17 
Wend.,  94. 

*Bond  V.  Farnham,  5  Mass.,  170;  Barton  v.  Baker,  1  S.  &  R.,  334; 
Jlechanics'  Bank  v.  Griswold,  7  Wend.,  165. 

5  Rhett  V.  Poe,  2  How.  (U.  S.),  457. 

6  Durham  v.  Price,  5  Yerg.,  300. 


420  NOTICE   OF   DISHONOR   OF   COMMERCIAL   PAPER. 

§  733.  Drawn  Upon  Partnership  l)y  Member  of  Firm. — 

It  has  also  been  held,  where  the  bill  was  drawn  upon  a  part- 
nership by  one  of  the  partnei's,  that,  as  each  member  was 
presumed  to  have  full  knowledge  of  whatever  concerned 
the  partnership  affairs,  and  the  drawer  could  have  no  action 
at  law  against  his  copartners  upon  the  dishonored  bill,  he 
was  not  entitled  to  notice.^ 

§  734.  Indorser. —  For  the  same  reasons  that  operate  in 
favor  of  the  drawer  of  a  bill  of  exchange,  an  indorser  of  a 
bill  or  note,  who  has  passed  the  instrument  by  an  unquali- 
fied indorsement,  is  also  entitled  to  notice  of  its  dishonor, 
and  upon  failure  of  notice  is  released  from  liability  to  sub- 
sequent parties.^ 

§735.  Need  Not  he  Indorser  for  Talne. —  This  right 
exists  in  favor  of  each  indorser  of  a  negotiable  instrument, 
who  has  a  right  to  resort  to  antecedent  parties,  whether 
they  be  indorsers  for  value  or  have  merely  received  and 
transferred  by  indorsement  the  bill  or  note  to  a  subsequent 
party  for  collection.^ 

§  736.  May  be  from  Any  Snbseqnent  Party. —  But  this 
right  to  notice  does  not  exist  in  every  instance  in  favor  of 
any  party,  as  against  any  particular  subsequent  party,  ex- 
cept the  holder.  The  drawer  of  a  bill,  or  the  first  of  any 
number  of  indorsers  of  a  bill  or  note,  may  be  bound  by 
notice  directly  from  the  holder,  although  all  intermediate 
parties  are  discharged  for  the  want  of  notice.^  The  mani- 
fest reason  of  this  is  that  no  one  can  have  an}-^  interest  in 
fixing  the  liability  of  subsequent  parties,  while  each  is  in- 
terested in  seeing  that  antecedent  parties  are  not  discharged. 
The  general  and  most  prudent  course,  however,  is  for  the 

1  Fuller  V.  Hooper,  3  Gray,  3S4;  Gowen  v.  Jackson,  20  Johns.,  176. 

2  Infra,  §  735  et  seq. 

3 McNeill  V.  Wyatt,  3  Humph.,  125;  Scott  v.  Lifford,  9  East,  347;  But- 
ler v.  Duval,  4  Yerg.,  265;  Clode  v.  Bayley,  12  M.  &  W.,  51;  Seaton  v. 
Scovill,  18  Kan.,  435;  Thillman  v.  Gueble,  32  La.  An.,  260;  Braley  to 
Buchanan,  21  Kan.,  555. 

*  2  Daniel  on  Negot.  Inst.,  §  995;  Cardwell  v.  Allen,  38  Gratt.,  157. 


TO   WHOM   GIVEN.  421 

party  giving  the  notice,  to  notify  all  the  prior  parties  whose 
residences  or  places  of  business  are  known  to  him.^ 

§  737.  Notice  of  Partial  Dishonor. —  It  does  not  always 
follow  that  an  indorser  is  comj)letely  discharged  from  lia- 
bility, where,  from  failure  of  notice  of  partial  dishonor  of  a 
negotiable  note  bearing  his  indorsement,  he  is  partially  dis- 
charged. As  where  the  note  was  payable  by  instalments, 
falling  due  at  different  periods,  it  was  held  that  the  notice 
should  have  been  given  upon  failure  to  pay  each  instal- 
ment, at  the  time  it  fell  due,  precisely  in  the  same  manner 
as  though  the  several  sums  were  evidenced  by  separate 
notes.  ISTotice  being  given  of  the  failure  to  pay  the  final 
instalment,  this  was  held  sufficient  to  fix  the  indorser's  lia- 
bility 2JT0  tanto,  though  he  was  clearly  discharged  with 
respect  to  those  of  the  dishonor  of  which  no  notice  had 
been  given. ^ 

§  738.  Indorser  of  Over-dne  Paper. —  The  authorities 
are  not  in  perfect  accord  as  to  the  right  of  an  indorser  of 
negotiable  paper  which,  at  the  time  of  indorsement,  was 
past  due,  to  notice.  The  doctrine  is  announced  in  Gray  v. 
Bell  ^  and  Van  Hoesen  v.  Yan  Alstyne,^  that  indorsers  of 
over-due  paper  are  not  entitled  to  notice  of  its  dishonor, 
beyond  such  as  would  arise  from  the  bringing  of  a  suit 
within  a  reasonable  time,  which  might  extend  to  several 
months.  In  the  latter  case  three  months  was  regarded  as 
a  reasonable  time.  But  notwithstanding  the  views  expressed 
in  these  two  cases,  the  current  of  authority  seems  to  be  de- 
cidedly against  the  exception  therein  contended  for.  In- 
dorsers after  maturity,  as  well  as  indorsers  of  paper  due  at 
sight  or  on  demand,  sustain  the  same  relations  to  each 
other,  and  to  other  parties,  in  regard  to  the  matter  of  notice, 
as  indorsers  of  time  paper,  before  maturity,  with  the  single 

iHutz  V.  Karthause,  4  Wash.  C.  Ct.,  1;  Williams  v.  Bank  of  United 
States,  2  Pet.,  96. 

2  Eastman  v.  Turman,  24  Cal.,  379. 

3  3  Rich.,  71. 

<  8  Wend.,  75. 


422  KOTICE   OF    DISUONOK    OF    COilMEECIAL   FAPEK. 

exception  that  they  have  a  right  to  insist  upon  the  exercise 
of  diligence  on  the  part  of  the  holder  in  demanding  pay- 
ment. Such  indorsement  is  regarded  as  equivalent  to  draw- 
ing a  new  bill,  or  making  a  new  note,  payable  at  sight  or 
on  demand.^ 

§  739.  Illustration  of  Above. —  In  rendering  the  opin- 
ion of  the  court  in  Colt  v.  Barnard,^  where  the  note  had 
been  negotiated  subsequent  to  its  dishonor,  Shaw,  C.  J., 
uses  the  following  language :  "  If  the  indorser  is  liable 
at  all  on  such  indorsement,  it  is  in  virtue  of  the  law  merchant, 
which  creates  a  conditional  hability  to  pay,  if  the  maker,  on 
presentment,  shall  neglect  or  refuse  to  pay,  and  seasonable 
notice  of  such  dishonor  is  given  to  the  indorser.  It  is  very 
clear  that  a  promissory  note  is  negotiable  after  it  falls  due, 
as  well  as  before.  Each  indorsement  is  in  the  nature  of  a 
new  draft,  by  which  the  holder  orders  the  maker  to  pay 
the  contents  to  the  indorsee.  *  *  *  All  the  reasons  which 
require  a  demand  and  notice,  in  any  case,  to  charge  the  in- 
dorser, apply  to  this.  There  is  the  same  reason  for  prompt 
notice,  namely,  that  the  indorser  may  take  measures  to 
secure  payment  if  the  note  is  dishonored  on  presentment."  ^ 

§  7  40.  Paper  Re-issued  by  Indorser. —  However,  where 
a  party  has  paid  and  taken  up  the  instrument  upon  w^hich 
he  was  liable  as  indorser  after  maturity,  and  his  liability, 

1  Light  V.  Kingsbury,  50  Mo.,  331 ;  Thompson  v.  Williams,  14  Cal., 
160 ;  Bebee  V.  Brooks,  12  id.,  808 ;  Jones  v.  Middleton,  29  la.,  188 ;  McKewer 
V.  Kirtlaud,  33  la.,  348;  Colt  v.  Barnard,  18  Pick.,  260;  Greely  v.  Hunt, 
21  Me.,  455;  Bishop  v.  Dexter,  2  Conn.,  419;  Bei-ry  v.  Robinson,  9  Jolms., 
121 ;  Branch  Bank  v.  Gafney,  9  Ala.,  153;  Hart  v.  Eastman,  7  Minn.,  74; 
Leavitt  v.  Putnam,  3  N.  Y.,  494;  Lockwood  v.  Crawford,  18  Conn.,  361 ; 
Dwight  V.  Emerson,  2  N.  H.,  159;  Kirkpatrick  v.  McCullough,  3  Humph., 
171 ;  Adams  v.  Torbet,  6  Ala.,  865;  Atwood  v.  Hazelton,  3  Bailey  (S.  C), 
457;  Com-se  v.  Shackleford,  2  Nott  &  McC,  283;  Shelby  v.  Judd,  24 
Kan.,  161;  Sawyer  v.  Brownell,  13  R.  I.,  141;  Bemis  v.  McKenzie,  13 
Fla.,  557;  Graul  v.  Strutzel,  53  la.,  713. 

218  Pick.,  260. 

3McKinney  v.  Crawford,  8  S.  &  R.,  351;  Rugely  v.  Davidson,  2  Mills' 
Const.  R.,  33;  Moody  f.  Mack,  43  Mo,,  210;  Davis  v.  Francisco,  11  id., 
672. 


TO   WHOM   GIVEN.  423 

as  well  as  that  of  other  parties,  has  been  fixed  by  due  notice 
of  dishonor,  and  he  re-issnes  the  paper,  he  will  not  be  enti- 
tled to  notice  of  a  subsequent  dishonor.^  The  reason  for 
this  distinction  is  that  the  indorser's  conditional  liability 
grows  out  of  his  contract  of  indorsement,  and  not  out  of 
the  re-issue  of  the  instrument.  His  hability  as  indorser  was 
fixed  by  notice  of  tlie  first  default  of  payment,  and  notice 
of  demand  and  .non-payment,  after  he  had  again  put  the 
paper  in  circulation,  would  be  as  useless  as  notice  to  the 
maker  of  a  promissory  note. 

§  741.  Purchase  at  Indorser's  Request  —  Notice  Un- 
necessary.—  So  where  the  indorser,  subsequent  to  the  dis- 
honor of  the  note,  persuaded  the  holder  to  purchase  it, 
notice  of  the  subsequent  dishonor  was  held  to  be  unneces- 
sary, as  the  purchaser  had  a  right  to  infer,  from  the  interest 
manifested  by  the  indorser,  that  his  liability  had  already 
been  fixed  by  notice.'- 

§  742.  Transferrer  by  Delivery  Not  Entitled  to  Notice. 
It  is  not  enough  to  entitle  one  to  notice  of  the  dishonor  of 
commercial  paper,  as  an  indorser,  that  the  instrument  dis- 
honored has  passed  through  his  hands,  and,  by  reason  of  its 
non-payment,  he  has  been  called  upon  to  reimburse  his 
transferee.  He  may  have  transferred  the  paper  by  mere 
delivery,  and  bound  himself,  by  an  independent  contract,  to 
answer  for  its  prompt  payment.  To  be  entitled  to  notice, 
the  party  transferring  negotiable  paper  must  do  so  hy  reg- 
ular indorsement,  so  that  all  subsequent  parties  may  be  in- 
formed of  the  interest  he  has  in  its  ultimate  fate.' 

§743.  Notice  to  Agent. —  Notice  of  dishonor  may  be 
given  to  an  agent  of  the  party  to  be  charged,  in  the  same 
manner,  and  with  like  effect,  as  it  may  be  given  to  the  party 

1  St.  Jolin  V.  Roberts,  81  N.  Y.,  441;  Williams  v.  Matthews,  3  Cow., 
252;  Libby  v.  Pierce,  47  N.  H.,  314;  2  Dan.  on  Negot.  Inst.,  §  997.  But 
see  Montgomery,  etc.,  R.  R.  Co.  v.  Ti-ebles,  44  Ala.,  255,  where  this  doc- 
trine seems  to  be  doubted. 

2  Libby  v.  Pierce,  47  N.  H.,  309. 

3  Van  Wart  v.  Woolley,  3  Bai-n.  &  Cres.,  439. 


424  KoricE  OF  dishonor  of  commercial  paper. 

in  person,  provided  the  authority  of  the  agent  extends  to 
the  receipt  of  notices  of  this  sort.^ 
§  744.   Example  of  Authority  to    Receive  Notice. — 

Where  E.,  by  letter  of  attorney,  constituted  F,  his  agent 
and  attorney,  general  and  special,  with  full  powers  for  and 
in  the  name  of  his  principal,  or  in  his  own  name  and  for  his 
own  use,  to  make,  indorse,  draw,  accept  and  negotiate  bills, 
notes,  etc.,  the  letter  stating,  in  conclusion,  "  that  it  was  to 
be  taken  and  understood  in  its  fullest  and  most  comprehen- 
sive sense  and  meaning,"  and  F.  made  his  own  note,  pay- 
able in  bank,  and  indorsed  it  in  the  name  of  his  principal, 
this  letter  of  attorney  was  held  to  authorize  the  attorney  to 
receive  notice  of  the  dishonor  of  the  note  so  indorsed,  so  as 
to  fix  his  principal's  liability  to  the  holder  or  subsequent 
indorser.- 

§  745.  Authority  May  be  Implied.— In  order  to  render 
notice,  served  upon  an  agent,  valid  and  binding  as  notice  to 
the  principal,  it  is  not  essential  that  the  agency  should  be 
created  by  letter  of  attorney.  The  authority  of  the  agent 
may  be  implied  as  well  as  express.  And  if  the  circumstances 
are  such  as  to  warrant  the  implication  that  the  relation  of 
principal  and  agent  subsists  between  the  party  entitled  to 
notice,  and  the  one  to  whom  it  is  given,  it  will  operate  as 
effectually  to  charge  the  principal  as  though  the  agent  had 
been  expressly  authorized.^ 

§  74(>.  Question  of  Fact. —  In  "Wilkins  v.  Commercial 
Bank,^  the  agent,  whose  power  of  attorney  had  exj)ired  by 
limitation,  was  still  in  the  habit  of  receiving  letters  addressed 
to  his  principal,  who  called  at  the  office  of  the  agent  for  his 
mail.     Notice  of  dishonor  of  a  bill  of  which  the  principal 

iSee  ch.  IX,  sec.  674,  part  II,  Notice  to  an  Agent;  also,  cases  cited 
infra;  "Wilkins  v.  Commercial  Bank,  6  How.  (Miss.),  217;  Fassin  v.  Hub- 
bard, 55  N.  Y.,  471 ;  Cross  v.  Smith,  1  M.  &  Sel.,  545. 

2  Wilcox  V.  Eouth,  9  Sm.  &  Marsh.,  476;  Smith  v.  Thatcher,  4  B.  & 
Aid.,  200. 

3  Wilkins  v.  Commercial  Bank,  6  How.  (Miss.),  217 ;  Hesters  v.  Petro- 
vic,  1  Rob.  (La.),  119;  Wilson's  Executrix  v.  Senier,  14  Wis.,  380. 

«6How.  (Miss.),  217. 


TO    WHOM   GIVEN.  425 

was  an  indorser  was  left  for  liim  at  the  office  of  the  agent, 
as  usual.  The  agent  had  no  recollection  of  either  receiving 
the  notice  or  dehvering  it  to  his  principal.  Under  these 
circumstances  it  was  held  that  the  implication  of  agency 
was  a  question  of  fact  for  the  jury,  and  if  found  to  exist, 
the  notice  so  served  was  sufficient  to  bind  the  principal. 

§  747.  Agent  with  Gsiieral  Authority.— So,  in  Hesters 
V.  Petrovic,^  where  the  indorser  was  absent  from  home,  and 
had  left  an  agent  in  charge  of  his  plantation,  with  author- 
ity to  collect  for  him  and  furnish  all  necessary  supplies  for 
his  plantation,  the  notice  of  dishonor  being  served  upon 
such  agent,  was  held  sufiicient  to  bind  the  principal. 

§  748.  Appointed  Prior  to  the  War. —  Notwithstanding 
the  interruptions  of  commercial  relations  which  follow  the 
outbreak  of  a  war,  and  w^hich  prevent  the  citizens  or  sub- 
jects of  one  of  the  belligerents  from  carrjang  on  business, 
either  by  themselves  or  then*  agents,  within  the  territory  of 
the  other  belligerent,  it  is  a  well  recognized  doctrine  in  such 
cases  that  agents  appointed  prior  to  the  war  may  act  so  as 
to  bind  their  principals  after  the  commencement  of  hostil- 
ities.^ It  was  accordingly  held,  where  an  agent  was  consti- 
tuted prior  to  the  late  civil  war  in  this  country,  with 
authority  to  receive  notice  of  the  dishonor  of  commercial 
paper  indorsed  by  his  principal,  that  notice  might  be  effect- 
ually served  upon  such  agent  after  the  commencement  of 
hostilities,  though  his  principal  was  then  domiciled  within 
the  enemies'  lines.^ 

§  749.  Example  Where  Authority  Not  Implied.— IS'ev- 
ertheless,  it  is  not  every  species  of  agency  that  will  author- 
ize the  service  of  notice  of  the  dishonor  of  commercial 
paper  on  the  agent,  for  the  purpose  of  fixing  the  liabihty 

1 1  Rob.  (La.),  119. 

2  Buchanan  v.  Curry,  19  Johns.,  137;  U.  S.  v.  Grossmayer,  9  Wall.,  72; 
Ward  V.  Smith,  7  Wall.,  447;  Conn  v.  Penn,  1  Pet.  C.  Ct.,  496;  Dennis- 
ton  V.  Imbrie,  3  Wash.  C,  Ct.,  396;  Paul  v.  Christie,  4  Harris  &  McH., 
161 ;  Robinson  v.  Int.  Life  As.  Soc,  43  N.  Y.,  54. 

3  Hubbard  v.  Matthews,  54  N.  Y.,  43. 


4:26  NOTICE   OF   DISHONOR   OF   COMMERCIAL   PAPER. 

of  the  principal  as  indorser.  The  agent  may  have  exten- 
sive powers  under  a  letter  of  attorney,  and  still  not  be  the 
proper  person  to  receive  notice  of  the  dishonor  of  a  bill  or 
note.  As  where  one  held  a  letter  of  attorney  from  one  of 
the  stockholders  of  a  bank  authorizing  him  to  receive  and 
sign  receipts  for  all  dividends  on  his  stock,  to  vote  as  his 
proxy,  to  deposit  money  in  said  institution,  and  draw  checks, 
to  lodge  promissory  notes,  and  to  sign  acceptances  of  bills 
of  exchange  for  his  principal;  this  extensive  grant  of  powers 
would  seem  to  be  sufficiently  comprehensive  to  include 
everything  essential  to  the  credit  of  the  principal  in  dealing 
with  negotiable  instruments ;  but  it  was  held  that  the  power 
conferred  was  sjjecial,  and  did  not  include,  either  expressly 
or  by  impUcation,  authority  to  receive  notice  of  the  dis- 
honor of  commercial  paper,  upon  which  the  principal  was 
liable  as  indorser;  hence,  notice  given  to  such  attorney 
would  not  bind  his  principal.^ 

§  750.  Not  Implied  from  Authority  to  Indorse. —  So  it 
was  held,  where  the  agent  was  duly  authorized  and  em- 
powered to  indorse  for  the  principal,  that  this  did  not  imply 
authority  in  such  agent  to  accej)t  notice  of  dishonor,  even 
of  a  bill  or  note,  indorsed  pursuant  to  such  authority;^  but 
this  case  can  hardly  be  followed,  so  long  as  we  admit  that 
the  authorization  of  the  agent  may  be  implied  as  well  as  ex- 
press. If  the  notice  of  dishonor  might  not  be  given  to  the 
agent  "who  indorsed  the  instrument,  without  further  inquiry 
as  to  his  authority  to  accept  notice,  it  is  difficult  to  imagine 
a  case  where  this  power  is  not  expressl}^  granted,  that  w^ould 
admit  of  the  principal's  being  bound  by  notice  given  to  his 
agent. 

§  751.  Notice  to  Partners. —  "Where  the  bill  or  note  is 
drawn  or  indorsed  b}^  two  or  more  persons  who  are  engaged 
in  business  as  partners,  and  the  draft  or  indorsement  is 
made  by  them  acting  in  their  partnership  capacity,  they 

1  Louisiana  St.  Bank  v.  Ellery,  4  Mart.,  N.  S.  (La.),  87. 

2  Valk  V.  Gaillard,  4  Strob.  (S.  C),  99.  See,  also,  Wilcox  v.  Routh,  9  Sm. 
«&  Marsh.,  476. 


TO   WHOM   GIVEN.  427 

thereby  become  jointly  and  severally  liable,  as  upon  otlier 
partnership  contracts,  and  a  notice  of  non-acceptance  or 
non-payment,  served  upon  either,  will  be  sufficient  to  bind 
them  both.^ 

§752.  Intlorsement  During  Partnership. —  In  order 
that  the  liability  of  both  partners  may  be  fixed  by  a  notice 
served  upon  one  of  them,  it  is  essential  that  the  draft  or  in- 
dorsement should  have  been  made  during  the  continuance 
of  the  copartnersLhip,  or  at  least  in  connection  with  the 
partnership  business ;  but  it  is  not  necessary  that  the  part- 
nership relation  should  continue  until  the  maturity  and  dis- 
honor of  the  instrument  and  the  service  of  the  notice.- 

§  753.  After  Dissolution. —  So  a  partnership  has  been 
held  bound  by  such  notice  after  dissolution,  when  it  was  dis- 
solved by  the  outbreak  of  the  civil  war,  and  one  of  the 
members  of  the  late  firm  was,  at  the  time  the  notice  was 
given,  living  within  a  hostile  state/ 

§  754.  To  Agent  of  One  of  the  Partners. —  It  has  been 
held,  also,  where  a  dissolution  of  partnership  took  place 
after  the  partners  had  indorsed  a  note,  that  notice  of  its 
subsequent  dishonor  might  be  given  to  the  agent  of  one  of 
them.* 

§  755.  To  Surviving  Partner. —  So,  also,  where  one  of 
the  partners  died  after  the  obligation  was  incurred,  it  was 
held  that  notice  to  the  surviving  partner  would  bind  the 
personal  representatives  of  the  deceased.'* 

1  Gowan  v.  Jackson,  20  Jolms.,  175 ;  Porthouse  v.  Parker,  1  Camp.,  82 ; 
Story  on  B.,  §§  299,  305;  Story  on  Prom.  Notes,  §  308;  People's  Bank  v. 
Keech,  26  Md.,  521;  Fourth  National  Bank  v.  Heuschen,  53  Mo.,  207: 
Brown  v.  Tm-ner,  15  Ala.,  N.  S.,  832;  Hubbard  v.  Matthews,  54  N.  Y., 
50;  Slocomb  v.  Lizardi,  21  La.  An.,  355. 

-Coster  V.  Thomason,  19  Ala.,  N.  S.,  717;  Slocomb  v.  Lizardi,  21  La. 
An.,  355;  Griswold  v.  Waddington,  16  id.,  484;  Clarke  v.  Morey,  10 
Johns.,  69;  Fourth  National  Bank  v.  Heuschen,  52  Mo.,  209. 

3  Hubbard  v.  Matthews,  54  N.  Y.,  43. 

*  Brown  v.  Tui-ner,  15  Ala.,  N.  S.,  832. 

5Dabney  v.  Stidger,  4  Sm.  &  Marsh.,  749. 


428  NOTICE    OF   DISHONOB   OF   COMMEKCIAL   PAPER. 

§  756.  Exception  as  to  Partners  —  Manner  of  Serv- 
ice.—  In  Hume  v.  Watt,^  an  exception  is  made  as  to  the 
validity  of  notice  to  bind  partners  when  served  upon  one, 
and  such  service  vras  held  to  bind  neither,  because  one  of 
the  partners  resided  in  the  place  where  the  note  Avas  dis- 
honored, and  where  the  party  resided  who  gave  the  notice. 
Instead  of  giving  him  personal  notice,  it  was  sent  through 
the  mail  to  the  other  partner,  who  was  a  non-resident  of  the 
place,  and  it  Avas  not  received  until  several  days  after  the 
time  within  which  it  should  have  been  personally  served 
upon  the  resident  partner.- 

§  757.  Joint  Indorsers  Not  Partners. —  Where,  how- 
ever, the  joint  drawers  or  indorsers  of  the  bill  or  note  do  not 
sustain  towards  each  other,  in  the  transaction,  the  relation 
of  partners,  the  rule  is  quite  different,  and  the  notice  of 
dishonor  should  be  given  to  each,  as  all  are  equally  entitled 
to  notice.' 

§  758.  Agency  Not  Implied  from  Joint  Indorsement. — 
Where  notice  has  been  given  to  one  of  such  joint  indorsers, 
there  is  nothing  in  the  nature  of  the  relations  existing  be- 
tween thein^  with  resjDect  to  the  instrument  by  which  they 
are  bound,  that  will  authorize  one  to  accept  or  waive  serv- 
ice of  notice  for  his  co-indorser  or  indorsers,  so  as  to  bind 
them,  unless  by  him  or  them  especially  authorized  so  to  do. 
The  mere  fact  of  their  having  joined  in  the  draft  or  in- 
dorsement will  not  amount  to  a  presumption  or  implication 
of  mutual  agency,  by  reason  of  w^iich  one  may  be  bound, 
in  any  way,  by  the  acts  or  admJssions  of  the  others.'* 

§  759.  Consequences  of  Failure  to  Notif^^  Both  Joint 
Indorsers. —  And  where  the  contract  of  indorsement,  or 
the  draft,  is  strictly  joint  in  its  nature,  the  consequences  of  a 

15  Kan.,  34. 

^Seepos^,  rV. 

3  Sayre  v.  Fi'ick,  7  W.  &  S.,  383;  Bank  of  IT.  S.  v.  Beirne,  1  Gratt.,  234. 
Contra,  see  Dodge  v.  Bank  of  Kentucky,  2  A.  K.  Marsh.,  610. 

<Shepard  v.  Hawley,  1  Conn.,  369;  Willis  v.  Green,  5  HiU,  232; 
Miser  v.  Trovjnger,  7  Ohio  St.,  281. 


TO   WHOM   GIVEN.  429 

failure  to  give  notice  to  one  of  the  joint  drawers  or  indorsers 
will  not  be  confined  to  the  discharge  from  liability  of  the 
one  to  whom  such  notice  is  not  given.  Their  contract 
being  joint  and  not  several,  the  discharge  of  one  would  dis- 
charge all.  So  that,  not  only  would  the  failure  of  notice 
release  those  not  notified,  but  would  also  discharge  those  to 
whom  notice  was  actually  given.' 

§  7  GO.  Assumption  of  Authority  l)y  One,  for  All,  Binds 
Him. —  Nevertheless,  circumstances  might  arise  where  a 
joint  obligor  would  not  be  discharged  from  liability  on  such 
a  contract,  by  a  failure  to  notify  some  one  or  more  of  his 
co-obligors.  As  where,  upon  notice  being  given  to  him,  he 
assumed  to  act  for  his  co-parties,  in  waiving  or  accepting 
notice.  Though  it  is  quite  clear  that  if  he  acted  without 
authority,  the  others  would  not  be  bound,  yet  it  would  be 
supporting  him  in  the  perpetration  of  a  fraud,  to  allow  that 
he  might  take  advantlge  of  the  consequences  of  his  own 
misrepresentation.  Even  where  no  fraud  was  apparent  in 
such  transaction,  the  doctrine  that  renders  a  pretended  agent 
personally  hable  for  the  contracts  entered  into  without  suffi- 
cient authority  to  bind  his  principal,  might  be  interposed, 
and  the  party  actually  notified  held  for  the  entire  amount 
of  the  dishonored  paper,  as  though  he  were  a  several 
indorser. 

§  761.  Circumstances  Admitting  Notice  to  Joint  In- 
dorsers.—  In  the  case  of  Willis  v.  Green,-  where  one  of  two 
joint  indorsers  of  a  note  died,  and  the  survivor  took  from 
the  maker  a  bond  and  warrant  of  attorney,  by  way  of 
security  or  indemnity,  and  had  collected  thereon  nearly  the 
amount  of  the  note,  it  was  held  to  be  an  admission  that 
proper  steps  had  been  taken  to  charge  both  indorsers. 

§  762.  Joint  Administrators  Cannot  Tie  Their  Hands. 
But,  notwithstanding  one  of  such  joint  parties  may  by  his 

I  People's  Bank  v.  Keech,  26  Md.,  521;  State  Bank  v.  Slaughter,  7 
Blackf.,  133;  Bank  of  Chenango  v.  Root,  4  Cow.,  126;  Wood  v.  Wood, 
16N.Y.,  438. 

^  Supra,  %  758. 


430  NOTICE    OF   DISHONOR   OF    COMMERCIAL   PAPER. 

action  in  the  premises  estop  himself  from  denying  that  the 
proper  steps  have  been  taken  to  tix  the  Uability  of  all  the 
parties,  the  personal  representatives  of  a  deceased  indorser 
cannot  so  tie  their  own  hands.  It  was  accordingly  held  that 
a  subsequent  promise  by  two  of  three  joint  administrators 
of  a  deceased  indorser,  to  pay  the  note,  where  there  had 
been  a  partial  failure  of  notice,  would  not  operate  as  a 
waiver  of  irregularities  calculated  to  render  the  service  of 
the  notice  insufficient.' 

§  763.  Notice  to  Personal  Representatives. —  In  the 
event  of  the  death  of  a  drawer  or  indorser,  due  notice 
to  his  personal  representatives  will  be  sufficient ;  and  where 
the  holder  has  notice  of  the  appointment  and  qualification 
of  an  administrator  or  executor,  when  the  note  or  bill  is 
dishonored,  such  representative  is  entitled  to  the  same  notice 
as  should  have  been  given  the  indorser  or  drawer,  were  he 
living  at  the  time  of  dishonor.- 

§  764.  How  Notified  by  Letter. —  Where,  however,  the 
holder  and  the  representatives  of  the  party  to  be  notified 
reside  in  different  places,  so  that  notice  may  properly  be 
transmitted  through  the  mail,  and  the  holder  cannot,  by  the 
exercise  of  reasonable  diligence,  ascertain  the  names  of  such 
representatives,  the}^  may  be  notified  by  a  letter  which  is 
not  addressed  to  them  by  their  names.  In  such  a  case,  or 
where  the  administrator  of  an  intestate  indorser  or  drawer 
has  not  been  appointed,  the  notice  will  be  sufficient  if  ad- 
dressed to  "the  personal  representatives"  of  deceased.' 

§  765.  Sufficient  When  Addressed  to  Deceased  In- 
dorser.—  So,  where  the  notary  in  whose  hands  the  note  was 
placed  for  the  purpose  of  demand,  and,  in  case  of  default  of 
payment,  notice  of  dishonor,  being  ignorant  of  the  death 

1  Cayuga  County  Bank  v.  Bennett,  5  Hill,  236. 

2  Oriental  Bank  v.  Blake.  22  Pick.,  206;  Stewart  v.  Eden,  2  Cai.,  121; 
Massachusetts  Bank  v.  Oliver,  10  Cush.,  557;  Smalley  v.  Wright,  40  N. 
J.  L.,  471. 

3  Boyd  V.  Orton,  16  Wis.,  495;  Boyd  v.  City  Savings  Bank,  15  Gratt., 
501. 


TO   WHOM   GIVEN.  431 

of  tlie  inclorser,  addressed  the  letter  containing  the  notice 
to  such  indorser,  which  notice  in  due  time  came  to  the  hands 
of  his  personal  representatives,  the  notice  was  held  sufficient 
to  bind  the  estate  of  the  decedent,  as  though  he  had  per- 
sonally received  the  notice  prior  to  his  decease.^ 

§  766.  Left  at  Last  Dwelling-place  of  Deceased. —  So, 
also,  where  the  indorser  died  at  sea  ten  days  prior  to  the 
maturity  of  the  note,  but  his  death  was  unknown  to  the 
holder  of  the  note  until  long  after  its  maturity  and  dis- 
honor, a  notice  left  at  his  last  dwelling-place  in  Xew  York 
could  not  be  impeached  for  not  beiug  given  to  the  proper 
party.2 

§  767.  Addressed  to  Indorser  Known  to  he  Dead.—  And 
it  has  been  held,  where  the  holder  knew  of  the  death  of  the 
indorser,  but  upon  diligent  inquiry  failed  to  have  the  names 
of  the  personal  representatives,  that  notice  sent  inclosed  in 
a  letter  directed  to  the  indorser  himself  would  be  sufficient.^ 

§  768.  To  One  of  Several  Personal  RepresentatiTes. — 
"Where  the  notice  was  sent  to  one  of  several  personal  repre- 
sentatives of  a  deceased  indorser,  this  was  held,  under  the 
laws  of  that  state,  sufficient  notice  to  bind  the  estate.* 

§  769.  To  Assignee  in  Bankruptcy,  or  to  Bankrupt. — 
AYhere  the  indorser  or  drawer  becomes  bankrupt  subsequent 
to  drawing  or  indorsing  the  bill  or  note,  the  notice  should 
be  given  to  the  assignee,  where  one  has  been  selected,  prior 
to  the  dishonor  of  the  instrument ;  but  until  such  assignee 
has  been  selected,  it  would  always  be  safe  to  notify  the 
bankrupt  himself,  as  he  is  the  onl}^  representative  of  his 
estate  until  the  assignee  is  chosen,  except  in  cases  where, 
pending  proceedings  in  banlo'uptcy,  a  receiver  is  appointed.^ 

'  Beals  V.  Peck,  13  Barb.,  245;  Maspero  v.  Pedesclaux,  22  La.  An.,  227. 

-Merchants'  Bank  v.  Bii'cli,  17  Johns.,  25. 

3  Barnes  v.  Reynolds,  4  How.  (Miss.),  114;  Goodnow  v.  Warren,  122 
Mass.,  82;  Linderman  v.  Guldin,  34  Pa.  St.,  54. 

*  Lewis  V.  Bakewell,  6  La.  An.,  359;  Carolina  Nat.  Bank  v.  Wallace, 
13  S.  C,  347;  Beals  v.  Peck,  13  Barb.,  245. 

^Ex  parte  Moline,  19  Yes.  Ch.,  216. 


432  NOTICE   OF   DISHONOR   OF    COlVrMERCIAL   PAPER. 

§  770.  Before  Selection  of  Assignee. —  In  Ex  parte  Mo- 
line,^  the  holder  of  the  note  appeared  at  the  second  pubhc 
meeting,  under  the  commission,  and  the  instrument  having 
been  dishonored  subsequent  to  the  commission,  notice  of 
such  dishonor  was  given  before  the  selection  of  an  assignee, 
and  such  notice  Avas  held  sufficient  upon  the  grounds  already- 
stated. 

§771.  Bankruptcy  of  Acceptor  No  Excuse. —  Where 
both  drawer  and  acceptor  were  declared  bankrupt  before 
the  maturity  of  the  bill,  and  the  holder  had  timely  notice 
of  the  appointment  of  assignees,  it  was  held  that  notice 
should  have  been  given  either  to  the  drawer  or  his  assignees 
of  the  demand  and  refusal  of  payment  at  maturit}^  There 
being  no  notice  given  to  either,  although  the  drawer's  place 
of  business  was  open,  and  in  charge  of  a  messenger,  and 
there  being  no  excuse  for  failure  of  notice  except  the  bank- 
ruptcy of  the  acceptors,  the  bill  was  not  allowed  to  be 
proved  under  the  commission  issued  against  the  drawer.^ 

§  772.  Might  be  to  Bankrupt  After  Assignment. —  It 
has  been  asserted  by  high  authority,^  that,  even  after  the 
assignment,  notice  may  be  effectually  given  to  antecedent 
parties  by  a  banlo-upt  indorser,  for  the  reason  that  he  still 
has  an  interest  in  the  bill  or  note,  and  will  be  benefited  by 
shifting  the  duty  of  payment  upon  those  who  are  ante- 
cedently liable  on  the  instrument.  By  a  parity  of  reason- 
ing, we  might  say,  that  as  the  bankrupt  drawer  or  indorser 
has  an  interest  in  securing  reimbursement  for  the  benefit  of 
his  estate,  notice  should  be  given  to  him,  or  at  least  might 
be  given  him  and  thereby  charge  his  estate. 

§  7  7  3.  To  Infant  Party. —  Where  the  indorser  or  drawer 
is  an  infant,  he  is  entitled  to  notice  of  the  dishonor  of  the 
instrument,  and  it  should  be  given  him,  precisely  as  though 
he  were  of  full  age.  He  may  not  choose  to  plead  the  dis- 
abihty  of  infancy  in  defense,  and  if  it  be  waived  by  him,  it 

iSMpra,§769. 

2  Rhode  V.  Proctor,  4  Barn.  &  Cres,,  517. 

*  Story  on  Prom.  Notes,  §  305. 


TO   WHOM   GIVEX  433 

cannot  be  interposed  by  antecedent  parties  who  receive 
notice  of  the  dishonor  through  him.* 

§774.  Married  Woman. —  Where  the  draft  or  indorse- 
ment is  made  by  s^feme  sole,  who,  previous  to  the  maturity 
of  the  instrument  drawn  or  indorsed,  marries,  in  case  of  de- 
fault of  acceptance  or  payment,  notice  thereof  should,  in 
general,  be  given  to  her  husband,-  The  exceptions  to  this 
would  probably  be  where  the  indebtedness  was  a  charge 
upon  her  separate  estate  in  equity,  or  where,  by  statute, 
married  women  are  held  personally  liable  on  their  contracts, 
whether  entered  into  before  or  after  marriage. 

§  775.  Drawer  or  Indorser  Insane. —  Should  the  drawer 
or  indorser  become  insane,  or  otherwise  incapable  of  man- 
aging his  own  affairs,  subsequent  to  incurring  the  con- 
ditional liability  and  previous  to  the  maturity  of  the  in- 
strument, so  that  the  appointment  of  a  guardian  becomes 
necessary,  in  the  event  of  the  instrument's  being  dishonored 
at  maturity,  notice  thereof  should  be  given  to  such  guardian.^ 

1  Story  on  Prom.  Notes  §  311. 
2J6zcZ. 
3J6id. 
28 


43i  KOTICE   OF   DISHONOR   OF   COMMERCIAL   PAPER. 


III.  Time  of  Giving  Notice. 

§  776.  Importance  of  Question  of  Time. 

777.  Eesults  of  Judicial  Legislation, 

778.  Division  of  Subject. 

779.  ]\Iust  be  Subsequent  to  Dishonor. 

780.  Effect  of  Payment  on  Day  of  Dishonor, 

781.  May  be  Given  on  Last  Day  of  Grace. 
783.  Time  of  Dishonor. 

783.  Refusal  to  Pay  at  Maturity. 

784.  Failure  and  Qualified  Refusal. 

785.  To  Resident  of  Same  Place. 

786.  Time  of  Delivery,  and  Not  of  Sending. 

787.  At  Place  of  Business  or  Residence. 

788.  Hours  at  Place  of  Business. 

789.  Hours  at  Place  of  Residence. 

790.  Nine  o'Clock  P.  M. 

791.  When  Left  on  Day  of  Dishonor. 

792.  Parties  Resident  in  Different  Places. 

793.  By  Mail  —  Time  of  Depositing  Letter. 

794.  General  Construction  of  "  Reasonable  Time." 

795.  Each  Party  Has  His  Day. 

796.  Statement  of  Lord  EUenborough. 

797.  The  Day  of  One  Party  Not  for  the  Benefit  of  Another. 

798.  Consequence  of  Numerous  Parties  Taking  One  Day. 

799.  Time  Not  Always  Measured  by  Intervening  Days. 

800.  Difficulties  in  Applying  the  Rule. 

801.  Chitty's  Doctrme  as  to  "  Next  Day." 

802.  Criticism  of  Above  by  Story  —  Twenty -four  Hours. 

803.  Impracticabihty  of  Chitty's  Rule. 

804.  Inconvenience  of  Story's  Rule. 

805.  Judicial  Construction  of  General  Rule. 

806.  Unreasonably  Early  Hour. 

807.  The  Hour  of  Closing  Mad. 

808.  Five  o'Clock  Too  Early. 
809..  Seven  o'Clock  Too  Early. 

810.  Six  o'clock  the  Hour  of  Closing. 

811.  Ten  Mmutes  Past  Nine  o'Clock. 

812.  INIight  be  Reasonable  Earlier  Than  Nine. 

813.  Half-past  Nine  Held  Too  Early. 

814.  Rule  Construed  by  Marshall. 

815.  Not  Necessary  to  be  Sent  by  Fhst  Mail. 

816.  Mere  Formal  CompUance  with  Rule  Not  Required. 

817.  Agents  or  Attorneys  Have  Their  Day. 


TIME   OF   GIVING   NOTICE.  435 

§  818.  Must  be  Secular  Day. 

819.  Jewish  Festival. 

820.  Sunday. 

821.  Time  Refers  to  Hour  of  Mailing. 

822.  Law  of  Place  of  Contract  Governs. 

823.  Consequences  of  Adopting  Unusual  Modes. 

824.  Question  of  Law  and  Fact. 

825.  Waiver  and  Excuse. 

826.  Deductions  from  Authorities  Cited. 

827.  No  Exceptions  to  Rule  Requiring  Notice  in  Reasonable  Time. 

§  776.  Importance  of  Question  of  Time.— No  branch  of 
the  subject  considered  in  this  chapter  is  of  greater  impor- 
tance than  that  which  treats  of  the  time  within  which  notice 
of  the  dishonor  of  a  negotiable  instrument  must  or  may  be 
given,  in  order  to  bind  the  party  notified.  No  question 
affecting  commercial  paper  has  been  the  subject  of  more 
anxious  inquiry;  none  of  the  mooted  questions  have  pro- 
voked a  greater  amount  of  litigation,  nor  drawn  out  the 
expression  of  such  a  contrariet}'"  of  opinion ;  and  it  is  still 
announced  from  the  bench,  and  by  leading  text- writers,  that 
the  only  rule  known  to  the  law  merchant  in  this  respect  is, 
that  the  notice  must  be  given  within  a  reasonable  time,  and 
that  what  is  a  reasonable  time  must  in  every  instance  de- 
pend upon  the  circumstances  peculiar  to  each  case.^ 

§  777.  Results  of  Judicial  Legislation. —  In  fact,  there 
can  be  no  rule  of  universal  application  laid  down  which 
will  operate  with  even  a  tolerable  approximation  to  equal- 
ity. The  circumstances  by  which  the  question  of  the  rea- 
sonableness of  the  time  is  affected  are  so  different  in  their 
character  that  it  has  been  found  necessary  by  the  courts  to 
promulgate  a  separate  rule  for  each  class  of  cases,  where 
susceptible  of  classification,  and  these  rules  have  been  ex- 
tended or  contracted  to  suit  the  novel  features  of  the  cases 
as  they  have  arisen.  This  question  has  been  so  often  liti- 
gated, and  so  ably  and  thoroughly  discussed  by  the  courts, 
that  at  this  day  a  case  can  hardly  arise,  for  which  some- 

iChitty  on  Bills,  224^5,  and  cases  cited;  1  Pars.  N.  &  B.,  507;  Story 
on  B.,  §  285.    But  see  2  Daniel  on  Negot.  Inst.,  §  1035. 


436  NOTICE   OF   DISHONOE   OF   COMMEECIAL   PAPER. 

where  in  the  long  line  of  decisions,  reaching  back  to  the 
time  of  Lord  Mansfield,  a  precedent  may  not  be  found 
which  Avill  serve  as  a  guide  to  determine  what  time  the 
giver  of  the  notice  might  take  for  the  purpose  of  preparing 
and  serving  the  same.  The  principles  applicable  to  almost 
any  given  case  will  be  found  as  well  settled  as  they  could 
be  by  legislation. 

§  778.  Division  of  Subject. —  The  most  important  cir- 
cmnstances  affecting  the  time  within  which  notice  of  dis- 
honor of  commercial  paper  should  be  given  are,  1.  The 
means  of  communication  between  the  holder  of  the  dishon- 
ored instrument  and  the  party  to  be  notified.  2.  The 
holder's  knowledge  or  want  of  knowledge  of  the  place  of 
residence  or  business  of  the  party  to  be  notified.  3.  The 
customs  of  the  place  where  the  notice  is  given  with  relation 
to  business  hours,  etc.  The  time  within  which  notice  should 
be  given  will  also  be  found  to  be  influenced  to  a  consider- 
able extent  by  the  position  occupied  upon  the  dishonored 
instrument,  by  the  party  giving  the  notice.  The  influence 
of  these  circumstances,  and  others  of  less  prominence,  will 
be  noticed,  as  instances  involving  their  operation,  either 
separately  or  together,  are  given  hereafter,  without  regard 
to  the  order  of  their  statement  above. 

§771).  Must  be  Subsequent  to  Dishonor. —  In  all  cases 
the  notice  must  be  given  subsequent  to  the  dishonor  of  the 
bill  or  note,^  which  cannot  take  place  prior  to  the  last  day 
of  grace,  when  the  paper  is  entitled,  either  by  statute  or  the 
law  merchant,  to  days  of  grace.^ 

§  780.  Effect  of  Payment  on  Day  of  Dishonor. —  It  was 
for  a  long  time  seriously  contended  that  not  only  must  the 
notice  be  subsequent  to  the  demand  and  refusal,  but  that  it 
must  be  on  a  subsequent  day,  for  the  reason  that  the  maker 
or  acceptor  was  entitled  to  the  entire  day  of  maturity  upon 
which  to  make  payment  and  discharge  himself  from  liabil- 
ity.   The  reason  of  this  has  been  so  far  recognized  that  he 

*  Jackson  v.  Richards,  3  Cai.,  343. 
2  Lenox  v.  Roberts,  2  Wheat.,  373. 


TIME   OF   GIVING   NOTICE.  437 

■was  held  not  to  be  required  to  pay  the  protest  fees,  if  pay- 
ment were  made  at  any  time  during  the  customary  business 
hours  of  the  day,  notwithstanding  demand  may  have  been 
made  upon  him  at  an  earlier  hour  of  the  same  day.^ 

§  781.  May  Ibe  Given  on  Last  Day  of  Grace. —  Neverthe- 
less, where,  upon  presentment  during  any  business  hour  of 
the  day,  payment  is  flatly  refused,  the  holder  need  not  wait 
until  later  in  the  day  in  order  to  allow  the  party  an  oppor- 
tunity to  obtain  the  money,  or  to  give  him  the  benefit  of 
any  change  of  mind  that  may  take  place,  but  may  give  the 
notice  as  soon  after  default  as  will  be  convenient  for  him- 
self, and  thereby  as  effectually  charge  the  parties  notified 
as  though  he  had  waited  until  the  last  minute  of  the  last 
hour  of  the  day.- 

§  782.  Time  of  Dishonor. —  Lord  Ellenbokough  laid 
down  the  rule  fixing  the  time  of  dishonor  after  which  no- 
tice might  be  given  so  as  to  charge  antecedent  parties,  by 
declaring  that  "  the  note  was  dishonored  as  soon  as  the 
maker  had  refused  payment  on  the  day  when  it  became 
due." '  So,  in  Ex  parte  Moline,*  a  final  refusal  to  pay,  made 
at  11  o'clock  in  the  forenoon,  was  held  sufficient  to  excuse 
the  holder  or  his  agent  from  calling  later  in  the  day  to  re- 
■peat  his  demand. 


^Osboi-ne  v.  Moncure,  3  Wend.,  170,  See,  also,  Hartley  v.  Case,  1 
Carr.  &  P.,  555,  where  it  is  held  that  if  the  acceptor  pay  the  bill  durin«j 
the  day  of  maturity,  though  after  notice  of  dishonor,  the  notice  comes 
to  nothing. 

2 Coleman  v.  Carpenter,  9  Pa.  St.,  178;  Ex  parte  Moline,  19  Ves.  Ch., 
216;  Haynesv.  Birks,  3  Bos.  &  P.,  599;  Hine  v.  Allely,  4  B.  &  Ad.,  624; 
Shed  V.  Brett,  1  Pick.,  401 ;  Lindenberger  v.  Beall,  6  Wheat.,  104;  Bus- 
sard  V.  Levering,  6  Wheat.,  102;  Thorpe  v.  Peck,  28  Vt.,  127;  Curry  v. 
Bank  of  Mobile,  8  Port.  (Ala.),  360;  McClane  v.  Fitch,  4  B.  Mon.,  599; 
Corp  V.  McComb,  1  Johns.  Cas.,  328;  Smith  v.  Little,  10  N.  H.,  526. 

SBurbridge  v.  Manners,  3  Camp.,  193.  But  see  Gilbert  v.  Dennis,  8 
Mete,  495,  where  it  is  held  that  notice  given  during  the  forenoon  of  the 
last  day  is  insufficient. 

*  Supra,  §  781. 


43S  KOTICE   OF   DISHONOK   OF   COMMERCIAL   PAPEE. 

§  783.  Refusal  to  Pay  at  Maturity.— So,  also,  in  Cole- 
man V.  Carpenter,^  where  the  note  was  presented  for  pay- 
ment on  Saturday  at  the  residence  'of  the  maker,  and  the 
holder  was  informed  that  the  party  was  not  at  home,  but 
would  return  on  Monday  and  pay  the  note,  this  was  held  as 
a  flat  refusal,  and  notice  given  the  same  day  was  regarded 
as  sufficient. 

§  781.  Failure  and  Qualified  Refusal. —  And  in  one  case, 
the  notice  given  on  the  day  of  dishonor  Avas  held  good, 
though  there  was  only  a  qualified  refusal  to  pay,  the  ac- 
ceptor saying,  when  the  bill  was  presented,  that  he  had  no 
effects,  but  expected  to  have  them  in  the  course  of  the  day. 
This  was  regarded  as  an  actual  dishonor,  sufficient  to  war- 
rant the  notification  of  antecedent  parties.^ 

§  785,  To  Resident  of  Same  Place. —  When  the  holder 
or  other  party  from  whom  notice  is  required,  or  the  agent 
of  such  party,  resides  or  carries  on  business  in  the  same 
town,  city  or  village  as  the  prior  party  to  be  notified,  the 
notice  must  be  delivered  personally,  or  at  the  residence  or 
place  of  business  of  such  prior  party,  at  furthest  on  the  day 
next  succeeding  that  upon  which  the  default  of  payment 
was  made,  provided  the  one  giving  the  notice  can,  by  the 
exercise  of  reasonable  diligence,  ascertain  the  residence  or 
place  of  business  of  the  party  to  be  notified.* 

§  786.  Time  of  Delivery,  and  Not  of  Sending. —  As  be- 
tween parties  residing  or  carrying  on  business  in  the  same 
place,  the  time  of  giving  notice  relates  to  the  day,  and  the 
hour  of  the  day,  in  which  the  same  is  delivered,  and  not  to 
the  day  or  hour  of  despatching  the  messenger.  It  would 
not,  therefore,  be  considered  as  a  sufficent  compliance  with 
the  law,  in  the  absence  of  a  reasonable  excuse  for  delay, 
where  the  message  was  forwarded  to  a  resident  drawer  or 
indorser  on  the  day  following  the  day  of  dishonor,  if  such 

»SMpra,§781. 

2  Hartley  v.  Case,  1  Car.  &  P.,  555. 

STindal  v.  Brown,  1  T.  R.,  167. 


TIME   OF   GIVING   NOTICE.  439 

message  was  not  delivered  until  the  next  succeeding  day/ 
except  where  service  between  such  parties  may  be  by  mail.- 

§  787.  At  Place  of  Business  or  Hesidence. —  One  of  the 
circumstances  affecting  the  service  of  notice  between  resi- 
dents of  the  same  city,  town  or  village,  with  respect  to  the 
time  of  service,  when  the  mode  is  by  leaving  the  notice 
with  some  one  other  than  the  party  to  be  notified,  is  the 
])lace  where  such  notice  is  left.  Though  the  holder  of  the 
instrument  may,  at  his  option,  leave  the  notice  at  the  resi- 
dence or  place  of  business  of  the  drawer  or  indorser,^  the 
hours  of  the  day  within  which  such  notice  may  be  effectu- 
ally served  at  these  two  places  are  essentially  different. 

§  788.  Hours  at  Place  of  Business. —  Where  the  notice 
is  served  upon  a  party  to  a  bill  or  note  by  leaving  it  at  the 
place  of  business  of  such  party  with  some  one  other  than  the 
one  for  whom  it  is  intended,  it  must  be  so  left  during  the 
ordinary  business  hours  of  the  day.** 

§  780.  Hours  at  Place  of  Residence. —  Where,  on  the 
other  hand,  the  holder  or  his  agent  serves  the  notice  by 
leaving  it  at  the  residence  of  the  party,  it  may  be  at  any 
time  before  the  usual  hour  of  retiring  for  the  night.^ 

§  7  90.  Nine  o'Clock  P.  M. —  It  was  accordingly  held,  in 
one  instance,  that  a  party  who  had  received  notice  of  the 
dishonor  of  a  note  indorsed  by  him,  might  notify  an  ante- 
cedent indorser  by  leaving  the  notice  for  him,  at  his  place  of 
residence,  at  9  o'clock  of  the  night  of  the  day  following  that 
upon  which  he  received  notice  of  the  default  of  payment.® 

1  Ireland  v.  Kip,  11  Johns,,  231;  Williams  v.  Bank  of  U,  S.,  2  Peters. 
100;  Smedes  v.  Utica  Bank,  20  Johns.,  372;  Cabot  Bank  v.  Warner,  10 
Allen,  522;  Grinman  v.  Walker,  9  la.,  426. 

2  See  post,  §  869  et  seq. ,  where  the  postal  delivery  system  is  held  to 
obviate  the  necessity  of  personal  service  of  notice  between  residents  of 
the  same  place. 

3  See  post,  §863. 

*  Adams  v.  Wright,  14  Wis. ,  408 ;  Cayuga  County  Bank  v.  Hunt,  2 
Hill,  635. 
s  Adams  v.  Wright,  14  Wis.,  408. 
fi  Jameson  v.  Swinton,  2  Taunt.,  224. 


440  NOTICE   OF   DISHONOR   OF   COMMERCIAL   PAPER. 

§  791.  When  Left  on  Day  of  Dishonor. —  iJs^evertheless, 
a  notice  left  at  the  residence  of  the  party  on  the  night  of 
the  day  of  dishonor,  or  even  given  b}'^  an  indorser  the  day 
when  he  received  notice,  too  late  to  operate  as  notice  for 
that  day,  would  be  a  good  and  sufficient  notice  for  the  fol- 
lowing day,  and  so  be  in  time  to  bind  the  party  notified  if 
otherwise  properly  served.^ 

§792.  Parties  Resident  in  Different  Places. —  When 
the  party  giving  the  notice  and  the  party  notified  reside  in 
different  places, —  that  is  to  say,  within  or  near  different 
cities,  towns  or  villages,  so  that  they  are  accustomed  to 
resort  to  different  postoffices  for  their  letters,  or  where  their 
residences  are  too  far  apart  to  render  personal  service,  or 
its  legal  equivalent,  practicable, —  the  most  important  cir- 
cumstance, affecting  the  time  of  giving  notice,  is  the  means 
of  communication  between  them. 

§  793.  By  Mail  —  Time  of  Depositing  Letter. —  For  the 
purpose  of  giving  notice  of  the  non-acceptance  or  non-pay- 
ment of  negotiable  paper  to  non-residents,  the  means  of 
communication  most  favored  is  the  pubhc  post.  Where  the 
notice  is  inclosed  in  a  letter  and  sent  through  the  mails, 
the  question  of  diligence  is  considered  with  reference  to 
the  time  of  depositing  the  letter  in  the  postoffice  and  not  the 
date  of  its  receipt  by  the  party  to  whom  it  is  addressed,^ 

§  794.  General  Construction  of  Reasonable  Time. — 
So  long  as  the  courts  had  no  rule  as  to  the  time  of  giving 
notice,  beyond  the  requirement  that  it  should  be  reasonable^ 
they,  as  well  as  the  business  public,  were  subject  to  no  httle 
embarrassment  in  settling  upon  a  construction  of  this  vague 
and  uncertain  limitation.  To  leave  this  as  a  simple  question 
of  fact  to  the  jury  did  not  have  a  tendency  to  the  promo- 
tion of  certainty  in  results.  It  was  found,  also,  that  to  re- 
quire notice  "  as  soon  after  the  dishonor  of  the  instrument 
as  practicable,"  according  to  the  doctrine  of  some  of  the 
earlier  cases,  would  have  a  tendency  to  compel  unreasonable 

1  See  §  839. 

2  See  cases  cited  infra,  §  831. 


TIME   OF   GIVING   NOTICE.  441 

haste,  and  thus  enhance  the  risk  of  fatal  mistakes ;  to  force 
the  holder  to  neglect  all  other  business  so  as  to  bestow  his 
entire  attention  upon  the  giving  of  the  notice,  and  that  the 
inquiry  into  all  the  circumstances  by  which  the  notice  might 
have  been  delayed  for  a  few  hours,  would  involv^e  the  ren- 
dering of  too  nice  and  exact  an  account,  by  the  one  giving 
the  notice,  of  the  manner  in  which  his  time  had  been  dis- 
posed of  between  the  dishonor  of  the  paper,  or  the  receipt 
of  the  notice  by  him,  and  the  sending  or  delivery  of  the 
notice  to  the  antecedent  party.  Hence,  for  the  purpose  of 
promoting  certainty  and  safety  in  dealings  in  negotiable 
securities,  it  was  deemed  necessary  to  give  the  term  reasoiv- 
able,  as  applied  to  notices  of  this  sort,  a  legal  construction. 
It  was  accordingly  held,  and  has  now  become  a  settled  rule 
of  the  law  merchant,  that  in  no  instance  shall  the  notice  be 
required  to  be  given  on  the  day  of  the  demand  and  default 
of  payment ;  but  it  shall  be  sufficient,  if  given  or  sent  on 
the  next  succeeding  day  thereafter} 

§  795.  Eacli  Party  Has  His  Day. —  This  rule  has  been 
extended  so  as  to  give  indorsers  who  receive  notice  the  same 
advantages  as  to  time  for  transmitting  it  to  antecedent  par- 
ties as  are  enjoyed  by  the  holder,  so  that  each  party  has  his 
day  in  which  to  give  notice  to  antecedent  parties,  which,  in 
case  of  an  indorser,  means  the  day  following  that  on  which 
he  receives  notice,  whatever  be  the  lapse  of  time  between 
the  date  of  dishonor  and  the  receipt  of  the  notice  from  the 
party  subsequent  to  him.^ 

1  Chick  V.  Pillsbury,  24  Me.,  458:  Manchester  Bank  v.  Fellows,  28  N. 
H.,  302;  Grand  Bank  v.  Blanchard,  23  Pick.,  305;  Whitwell  v.  Johnson, 
17  Mass.,  449;  Carmena  v.  Bank  of  La.,  1  La.  An.,  369;  Blackman  v. 
Leonard,  15  La.  An.,  59;  Neal  v.  Taylor,  9  Bush,  380;  Whitlesey  v. 
Dean,  2  Aikens,  263;  Langdale  v.  Trimmer,  15  East,  291;  Darbishire 
V.  Parker,  6  East,  3;  Bartlett  v.  Howley,  120  Mass.,  92. 

2  United  States  Bank  v.  Goddard,  5  Mason,  366;  Sussex  Bank  v.  Bald- 
win, 17  N.  J.  L.,  487;  Carter  v.  Burley,  9  N.  H.,  558;  Howard  v.  Ives,  1 
Hill,  263;  Hai-tford  Bank  v.  Stedman,  3  Conn.,  489;  Dobree  v.  Eastwood, 
3  Can-.  &  P.,  250;  Turner  u.  Leech,  4  B.  &  Aid.,  451 ;  Rowe  v.  Tipper,  20 
Eng.  L.  &  Eq.,  220;  3  Kent,  Com.,  106. 


4i2  NOTICE    OF   DISHONOR   OF   COMMERCIAL   PAPER. 

§796.  Statement  of  Lord  Ellenborougli. —  This  rule 
and  the  reason  upon  which  it  is  founded  is  given  by  Lord 
Ellenbouough  in  the  case  of  Bray  v.  Iladwen,'  in  the  fol- 
io Aving  language :  "  It  has  been  laid  down,  I  believe,  since 
the  case  of  Darbishire  v.  Parker,  as  a  rule  of  practice,  that 
each  party  into  whose  hands  a  dishonored  biU  may  pass, 
should  be  allowed  one  entire  day  for  the  purpose  of  giving 
notice.  A  different  rule  would  subject  every  party  to  the 
inconvenience  of  giving  an  account  of  all  his  other  engage- 
ments, in  order  to  prove  that  he  could  not  reasonably  be 
expected  to  send  notice  by  the  same  day's  post  which 
brought  it.  *  *  *  It  has  moreover  this  advantage,  that 
it  excludes  all  discussion  as  to  the  particular  occupations  of 
the  party  on  that  day," 

§  797.  The  Day  of  One  Party  Not  for  the  Benefit  of 
Another.—  Xerertheless,  it  should  be  borne  in  mind  that 
the  day  to  which  one  party  is  entitled  within  which  to  pre- 
pare and  forward  his  notice  to  prior  parties,  cannot  be 
availed  of  by  a  subsequent  party  to  prolong  the  time  within 
Avhich  he  may  notify  the  more  remote  party.^  This  princi- 
ple is  illustrated  by  the  case  of  Rowe  v.  Tipper."  There 
the  note  was  dishonored  on  Saturday,  and  notice  was  given 
by  the  holder  to  his  immediate  indorser  on  the  Monday  fol- 
lowing. The  party  so  notified  might  have  bound  the  next 
antecedent  indorser  by  notice  on  Tuesday,  but  failed  to  do 
GO,  and  the  holder  undertook  to  sup])ly  the  omission  of 
giving  notice  on  that  day,  which  was  two  days  after  the 
date  of  demand  and  non-payment  to  such  antecedent  in- 
dorser. The  last  notice  was  held  too  late,  for  the  reason,  as 
expressed  in  the  opinion  of  the  court  delivered  on  that 
occasion,  that  "if  the  holder  seeks  to  avail  himself  of  notice 
of  dishonor  given  by  him  to  remote  indorsers,  it  must  be 


i5Maule&Sel.,  68. 

2  Manchester  Bank  v.  Fellows,  28  N.  H.,  302;  Brown  v.  Furguson,  4 
Leigh,  37;  Turner  v.  Leech,  4  B.  &  Aid.,  451. 

3  Supra,  §  795. 


TIME   OF   GIVING   NOTICE.  443 

given  within  the  time  he  should  have  given  notice  to  his 
own  immediate  indorser."  ^ 
§  798.  Consequence  of  Numerous  Parties  Taking  a  Day. 

The  application  of  this  rule,  where  the  dishonored  instru- 
ment bears  numerous  indorsements,  might  result  in  greatly 
prolonging  the  time  from  the  date  of  dishonor  until  the  first 
indorser  or  the  drawer  was  notified  of  the  fixing;  of  his  lia- 
bility.  Should  each  successive  indorser  avail  himself  of  the 
day  allowed  him  for  the  purpose  of  preparing  and  forward- 
ing the  notice,  and  should  be  content  to  give  the  notice  to 
his  immediate  indorser,  leaving  the  latter  to  notify  the  par- 
ties antecedently  liable,  the  time  thus  consumed,  when 
taken  together  with  the  necessary  time  for  transportation, 
might,  from  days,  grow  into  weeks,  or  even  months',  before 
the  notice  reached  the  party  last  entitled  thereto.  Not- 
withstanding the  circuitous  course  taken  by  the  notice,  in  a 
case  of  this  kind,  and  although  it  might  have  been  given 
in  a  much  shorter  time  by  the  holder  directly  to  the  drawer 
or  first  indorser,  it  will  be  none  the  less  binding  on  account 
of  the  delay.^ 

§  7  99.  Time  Not  Always  Measured  by  Intervening  Days. 
When  a  notice  is  thus  sent  to  each  party  in  succession,  and 
any  one  or  more  of  such  parties  sends  or  delivers  the  notice 
to  those  who  are  antecedent  to  him,  on  the  same  day  he  re- 
ceives it,  this  will  shorten  the  time  for  the  drawer  or  first 
indorser,  because  no  antecedent  party  Avill  be  permitted  to 
take  advantage  of  the  time  thus  gained.^    The  number  of 

1 A  dictum  in  tbe  case  of  Etting  v.  Schuylkill  Bank,  2  Pa.  St.,  355, 
lays  down  tbe  general  rule  that  when  notice  "is  given  by  the  holder 
directly,  it  is  soon  enough,  if  it  reach  the  pai-ticular  indorser  as  soon  as 
it  would  have  reached  liim  cu-cuitously  through  the  subsequent  in- 
dorsers,  each  of  whom  are  entitled  to  an  entire  day,  if  he  choose  to 
insist  on  it,  to  hand  it  on."  This  singular  misinterpretation  of  the  au- 
thorities, however,  has  no  following. 

2  Smith  V.  Roach,  7  B.  Mon.,  17;  Whitman  v.  Farmers'  Bank,  8  Port. 
(Ala.),  258 ;  Fitchbm-g  Bank  v.  Perley,  2  AUen,  433. 

sSimpson  v.  Terney,  5  Humph.,  419;  Marsh  v.  Maxwell,  2  Camp.,  210, 
note. 


444  NOTICE   OF   DISHONOR   OF   COMMERCIAL   PAPER. 

days,  therefore,  intervening  between  the  dishonor  of  com- 
mercial paper,  and  notice  to  the  drawer  or  first  indorser, 
may  not  always  be  measured  by  the  number  of  indcrsers, 
even  where  there  are  no  unusual  or  unexpected  obstructions 
to  the  transmission  of  the  notice  from  one  to  another. 

§  800.  Difficulties  in  Applying  the  Rule. —  In  applying 
the  rule  giving  the  holder  or  indorser  until  the  day  after 
dishonor  to  notify  prior  parties,  comparatively  little  diffi- 
culty has  been  experienced  where  the  parties  between  whom 
the  notice  passed  were  residents  of  the  same  place.  But 
when  the  situation  of  the  parties  rendered  the  mail  the 
most  convenient  mode  of  communication,  the  question  has 
been  involved  in  some  difficulty. 

§801.  Cliitty's  Doctrine  as  to  "  Next  Day."—  Mr.  Chitty 
lays  down  the  rule  that  "  where  the  notice  is  to  be  sent  by 
the  general  post,  then  the  holder,  or  party  to  give  the  notice, 
must  take  care  to  forward  notice  by  the  post  of  the  next 
day,  after  the  dishonor,  or  after  he  received  notice  of  such 
dishonor,  whether  that  post  sets  off  from  the  place  where 
he  is,  early  or  late."  ^ 

§802.  Criticism  of  Above  by  Story  —  Twenty-four 
Hours. —  Judge  Story,  however,  holds  the  rule  to  be  less 
strict  than  as  laid  down  by  Mr.  Chitty,  and  expresses  his 
views  of  the  doctrine  as  follows :  "  It  would  be  more  correct 
to  say  that  the  holder  is  entitled  to  one  whole  day  to  pre- 
pare his  notice,  and  that  therefore  it  wiU  be  sufficient  if  he 
send  it  by  the  next  post  that  goes  after  twenty-four  hours 
from  the  time  of  the  dishonor.  Thus,  suppose  the  dishonor 
is  at  4  o'clock  P.  M.,  on  Monday,  and  the  post  leaves  on 
Tuesday  at  9  or  10  o'clock,  it  seems  to  me  that  the  holder 
need  not  send  by  that  post,  but  may  safely  wait  and  put 
the  notice  into  the  postoffice  earl}'"  enough  to  go  by  the  post 
on  Wednesday  morning  at  the  same  hour."  - 

§  803.  Impracticability  of  Chitty's  Rule. —  A  strict 
adhesion  to  the  rule  laid  down  by  Mr.  Chitty,  instead  of  af- 

1  Chitty  on  Bills,  458  (9th  ed.). 

2  Story  on  BiUs,  §  891  (note) ;  id.,  §  291. 


TIME   OF   GIVING   NOTICE.  445 

fording  the  holder  or  party  giving  the  notice  a  reasonable 
time  to  prepare  and  forward  the  same,  might  render  it 
utterly  impracticable  for  him  to  notify  prior  parties  within 
the  time  thus  arbitrarily  prescribed.  Suppose  the  notice  to 
be  given  an  indorser  about  the  last  quarter  of  his  usual  hour 
of  retiring  for  the  night,  which,  in  some  places,  would  be 
at  12  o'clock.  Suppose  the  first  mail  of  the  succeeding  day 
should  leave,  in  the  early  part  of  the  first  hour  of  the  day, 
which  would  be  some  time  previous  to  1  o'clock,  and  might 
be  but  a  few  minutes  past  12.  Thus  the  time  within  which 
the  indorser,  notified  at  his  residence,  would  be  required  to 
prepare  his  notice  to  antecedent  parties,  and  deposit  it  in 
the  postofiice,  might  be  reduced  to  a  very  few  minutes. 
Lord  Ellenboeough,  in  rendering  the  opinion  of  the  com't 
in  Smith  v.  MuUett,^  says  that  "  each  man  has  a  day.  If 
you  limit  a  man  to  the  fractional  part  of  a  day,  it  will  come 
to  a  question  how  swiftly  the  notice  can  be  conveyed.  A 
man  and  horse  will  be  employed,  and  you  will  have  a  race 
against  time." 

§  804.  Inconvenience  of  Story's  Rule. —  On  the  other 
hand,  the  twenty-four  hour  rule  is  equally  foreign  to  the 
purpose  for  which  one  day  was  fixed  upon  as  the  proper  time 
to  allow  parties  within  which  to  give  such  notices.  The 
object  was  to  insure  a  reasonable  time  to  the  giver  of  the 
notice,  so  that  he  might  not  be  forced  to  neglect  other  busi- 
ness in  order  to  attend  to  the  matter  of  giving  the  notice. 
To  follow  the  rule  allowing  twenty-four  hours  would  require 
the  court,  in  every  instance,  to  engage  in  nice  computations 
of  fractions  of  a  day,  which  is  a  practice  universall}^  looked 
upon  with  judicial  disfavor.'^  The  doctrine,  as  announced 
by  the  learned  author,  is  unsupported  by  authority. 

§805.  Judicial  Construction  of  General  Rule.— The 
construction  which  has  been  placed  upon  the  above  rule,'  by 
the  best  considered  cases,  both  in  this  country  and  Great 

»'2Camp.,  208. 

2  2  Blackst.  Com.,  141. 

3  5fitpra,  §794. 


446  KOTICE   OF   DISHONOR   OF   COMMEKCIAL   PAPEK. 

Britain,  is  that  the  notice  should  be  sent  by  the  post  of  the 
day  following  that  upon  which  default  is  made,  provided 
the  liour  of  departure  is  not  unreasonably  early,  or  before  a 
convenient  hour  for  business}  Should  the  only  mail  of  the 
day  take  its  departure  at  an  hour  in  the  morning  too  early 
for  business  purposes,  then  it  would  be  sufficient  if  posted  in 
time  for  the  out-going  mail  of  the  next  succeeding  day. 

§  806.  Unreasonably  Early  Hour. —  What  is  an  unrea- 
sonably early  hour  to  be  required  to  attend  to  the  business 
of  forwarding  the  notice  must  be  separately  determined  in 
each  case  by  the  finding  of  a  court  or  jury.  The  hour  will 
vary  according  to  the  locality  and  the  circumstances  of  the 
party  sending  the  notice,  and  may  change  in  any  given 
locality  as  the  customs  and  habits  of  the  business  men  of 
such  place  are  altered. 

§  807.  The  Hour  of  Closiug  Mail. —  An  instance  of  an 
hour  which  would  probably  be  regarded  as  too  early  in  any 
business  community  will  be  found  in  the  case  of  Bank  of 
Alexandria  v.  Swann,^  where  the  mail  took  its  departure 
between  the  hours  of  12  o'clock  of  the  night  after  default, 
and  2  o  clock  A.  M.  of  the  day  following  the  day  of  dis- 
honor. Of  course  the  party  from  whom  the  notice  was  due 
was  not  required  to  prepare  and  post  the  same  at  such  an 
early  hour  as  this.  Besides,  as  in  all  probability  the  mail  de- 
parting at  such  an  early  hour  would  be  closed  against  the 
receipt  of  letters,  previous  to  12  o'clock  of  the  night  of  the 
day  of  dishonor,  it  could  not  reasonably  be  called  the  mail 

iLawson  v.  Farmers'  Bank,  1  Ohio  St.,  206;  Burgess  v.  Vreeland,  2-4 
N.  J.  L.,  71;  Wemple  v.  Dangerfield,  2  Sm.  &  M.,  445;  Stephenson  v. 
Dickson,  24  Pa.  St.,  148;  FuUerton  v.  Bank  of  U.  S.,  1  Pet.,  604;  Bank 
of  Alexandria  v.  Swan,  9  Pet.,  33;  Carter  v.  Barley,  9  N.  H.,  558;  Sus- 
sex Bank  v.  Baldwin,  17  N.  J.  L.,  487;  Downs  v.  Planters'  Bank,  1  Sm. 
&  M.,  261;  Cliick  v.  Pillsbury,  24  Me.,  458  (overruling  Goodman  v.  Nor- 
ton. 17  Me.,  381  and  Beckwith  v.  Smith,  22  id.,  125);  Davis  v.  Hanley, 
12  Ark.,  645;  West  v.  Brown,  6  Ohio  St.,  542;  Mitchell  v.  Cross,  2  R.  I., 
437;  Hawks  v.  Salter,  4  Bing.,  715;  GeiU  v.  Jeremy,  22  Eng.  C.  L.,  249; 
WiUiams  v.  Smith,  2  B.  &  Aid.,  496. 

2  9  Pet.,  33. 


TIME   OF   GIVING   NOTICE.  44:7 

of  the  next  day.'  The  case  cited  sufRciently  illustrates  the 
propriety  of  considering  the  day  and  hour  of  dosing,  rather 
than  that  of  the  departtire  of  mails.  There  the  mail  was 
closed  at  9  o'clock  P.  M.  of  the  day  of  dishonor,  and  took 
its  departure  at  sunrise  of  the  following  day,  and  the  court 
decided  the  mail  to  be  of  the  day  upon  which  it  was  closed, 
and  the  notice  to  an  indorscr,  posted  on  the  day  following 
that  upon  which  the  note  was  dishonored,  was  held  good, 
although  there  was  no  other  mail  going  in  the  direction  of 
the  indorser's  residence  until  the  second  day  thereafter. 

§808.  Five  o'clock  Too  Early.— It  was  also  held,  in 
West  v.  Brown,^  that  5  o'clock  was  an  hour  of  the  morning 
too  early  for  business;  so  that  where  the  mail  departed  at 
that  hour,  a  notice  posted  at  9  o'clock  thereafter  would  be 
sufficient,  regardless  of  the  time  of  departure  of  the  next 
mail. 

§  800.  Seven  o'Clock  Too  Early.— In  Davis  -y.  Ilanley,' 
7  o'clock  was  the  hour  at  which  it  would  have  been  neces- 
sary to  post  the  notice  "  if  the  first  mail  of  the  next  day  " 
had  been  insisted  upon ;  but  the  court  held  this  unreason- 
ably early  for  business. 

§  810.  Six  o'clock  the  Hour  of  Closing.— So,  in  Chick 
V.  Pillsbury,*  6  o'clock  was  the  hour  of  closing  the  mails, 
and  this  was  held  too  early  to  require  the  deposit  of  notice, 
as  it  was  earlier  than  the  business  men  of  the  community 
would  be  stirring.  This  was  decided  without  reference  to 
the  hour  of  departure. 

§811.  Ten  Minutes  Past  Nine  o'Clock. —  In  Lawson 
V.  Farmers'  Bank,'^  ten  minutes  past  9  was  held  to  be  not 
unreasonably  early,  "  or  before  a  reasonable  and  convenient 
time  after  the  commencement  of  early  business  hours  of  the 
day  "  in  the  city  of  Pittsburgh,  Pennsylvania. 

1  Farmers'  Bank  v.  DuvaU,  7  GUI  &  J.,  78. 
-'6  Ohio  St.,  543. 
313  Ark.,  645. 
*  84  Me.,  458. 
5 1  Ohio  St.,  306. 


448  NOTICE    OF   DISHONOR   OF   COMMERCIAL   PAPER 

§812.  Might  be  Reasonable   Earlier  Than  Nine.— In 

Davis  V.  Planters'  Bank/  the  notice  was  deposited  in  the 
postoflBce  at  9  o'clock  on  the  morning  of  the  day  next  suc- 
ceeding that  upon  which  the  instrument  was  dishonored, 
and  the  court  held  substantially  that  this  was  insufficient 
unless  it  further  appeared  that  the  mail  left  subsequent  to 
that  hour,  or,  if  prior  thereto,  at  an  unreasonably  early 
hour. 

§813.  Half-past  Nine  Held  Too  Early.— In  Hawks  v. 
Salter,-  however,  the  hour  of  the  mail's  going  out  was  half- 
past  9  o'clock  on  the  morning  of  the  day  the  notice  was  re- 
quired to  be  sent.  This  was  held  too  early  for  business  men 
to  attend  to  the  posting  of  notices,  and  consequently  a  no- 
tice deposited  in  the  receiving  office  later  in  the  day  was 
held  sufficient. 

§814.  Rule  Construed  by  Marshall. —  The  principle 
upon  which  the  holder  or  other  party  sending  the  notice  is 
excused  from  posting  it  at  a  very  early  hour  is  generally 
regarded  as  consistent  with  some  of  the  authorities  cited, 
where,  as  in  Lenox  v.  Koberts,*  it  is  held  by  Chief  Justice 
Marshall  that  "a  demand  of  payment  should  be  made 
upon  the  last  day  of  grace,  and  notice  of  the  default  of  the 
maker  be  put  into  the  postoffice  early  enough  to  be  sent  by 
the  mail  of  the  succeeding  day."  The  proviso  that  the 
mail  closes  at  a  reasonably  early  hour  is  added  as  a  rational 
explanation  of  the  meaning  of  "  the  mail  of  the  succeeding 
day,"  so  as  to  render  the  rule  applicable  to  cases  where 
there  is  but  one  mail  on  such  day,  and  there  is  a  question 
whether,  with  reasonable  dihgence,  the  notice  might  have 
been  sent  by  that.'* 

§  815.  Not  Necessary  to  be  Sent  by  First  Mail. —  It  has 
been  contended,  as  we  have  noticed,  that,  in  order  to  charge 
drawers  and  indorsers  of  commercial  paper  with  notice  sent 

ilSm.  &M.,  261. 

2  4Bing.,  715. 

3  2  Wheat.,  373. 
*  Supra. 


TIME   OF   GIVING   NOTICE.  449 

tkroiigh  the  mails,  it  is  essential  that  the  notice  should  go 
by  the  first  mail  of  the  day  succeeding  the  day  of  matm^ity 
and  demand;^  but  whatever  difference  of  opinion  there 
may  have  existed  at  one  time  upon  this  question,  it  may 
now  be  regarded  as  fully  settled  by  authority,  that  where 
two  or  more  mails  take  their  departure  on  the  day  succeed- 
ing the  day  of  dishonor  to  the  place  where  the  party  to 
whom  the  notice  is  addressed  has  his  residence,  notice  sent 
hy  either  of  such  mails  will  he  sufficient} 

§816.  Mere  Formal  Compliance  with  Rule  Not  Re- 
quired.—  And  where  there  is  no  regular  outgoing  mail  on 
the  next  day  after  the  dishonor,  which  leaves  at  a  reason- 
able hour  for  business,  the  notice  will  be  sufficient  if  de- 
posited in  time  for  the  next  regular  mail  that  goes  in  the 
required  direction,  regardless  of  the  number  of  days  that 
may  intervene  between  the  dishonor  of  the  bill  or  note,  and 
the  departure  of  the  mail  by  which  notice  of  non-payment 
is  conveyed  to  the  party  to  be  charged.^  The  law  does  not 
exact  a  mere  formal  compliance,  which  must  necessarily 
prove  fruitless  of  results.  The  notice  might  as  well  be  lying 
in  the  private  desk  of  the  holder  as  in  the  postoffice  await- 
ing the  time  for  the  departure  of  the  mail. 

§817.  Assents  or  Attorneys  Have  Their  Day. —  When 
it  is  said  that  a  holder  or  indorser  is  entitled  to  a  da}^  within 
which  to  prepare  and  post  the  notice  to  non-residents,  or  to 
serve  notice  upon  prior  parties  who  reside  in  the  same  place, 
it  will  be  understood  that  this  applies  as  well  to  agents  or 
attorneys  who  merely  hold  or  indorse  the  jDaper,  to  facili- 
tate collection,  as  to  holders  and  indorsers  for  value.* 

1  CMtty  on  Bills,  485  (11th  Am.  from  9th  Lend.  Ed.),  and  cases  cited. 

2 Carter  v.  Bm-ley,  9  N.  H.,  558;  Whitwell  v.  Jolmson,  17  Mass.,  449; 
AUen  V.  Avery,  47  Me.,  287. 

3  Montelius  v.  Charles,  76  lU.,  303;  GeiU  v.  Jeremy,  22  Eng.  C.  L.,  249; 
S.  C,  1  M.  &  M.,  61. 

4 Sussex  Bank  v.  Baldwin,  17  N.  J.  L.,487;  Firth  v.  Thrush,  15  Eng. 
C.  L.,  242;  Robson  v.  Bennett,  2  Taunt.,  388;  Haynes  v.  Birks,  3  Bos.  & 
P.,  599;  Langdale  v.  Trimmer,  15  East,  291 ;  Daly  v.  Slatter,  4  Car.  &  P., 
200. 

29 


450  NOTICE    OF   DISHONOR   OF   C0:MMEECIAL   PAPER. 

§  818.  Must  be  Secular  Day. —  The  statement  that  the 
hokler  or  inclorser  who  has  received  notice  must  send  or 
dehver  the  notice,  according  to  the  relative  situation  of  the 
parties,  on  tlie  day  succeeding  that  upon  which  the  note  or 
bill  was  dishonored,  or  notice  thereof  was  received  by  the 
indorser,  must  be  accepted  with  the  qualification  that  where 
either  the  day  upon  which  the  notice  is  received,  or  the  day 
succeeding  the  date  of  dishonor  or  receipt  of  notice,  is  a  pub- 
lic holiday,  or  a  day  set  apart  by  the  religious  denomination 
to  which  the  party  charged  with  the  duty  of  giving  the  no- 
tice belongs,  as  a  religious  festival,  or  as  sacred  from  secular 
affairs,  such  day  will  not  be  computed  as  forming  any  part 
of  the  time  within  which  the  party  is  required  to  attend  to 
the  giving  or  sending  of  the  notice.^ 

§  8 1 9.  Jewish  Festival. —  So  where  the  day  following 
that  upon  which  an  indorser,  who  was  a  Jew,  received 
notice,  was  set  apart  as  a  Jewish  festival,  upon  which  it  was 
held,  by  those  of  that  faitli,  unlawful  to  attend  to  their  sec- 
ular affairs,  it  was  held  that  the  commercial  law  had  such 
regard  for  the  consciences  of  men,  of  whatever  religious 
persuasion  or  belief,  that  in  this  instance  the  party  would 
not  be  required  to  send  the  notice  during  the  continuance  of 
such  festival,  but  it  would  be  regarded  as  sufficient  if  sent 
on  the  day  following  that  held  sacred  to  religious  observ- 
ances."^ 

§  820.  Sunday. —  So,  also,  where  notice  of  default  in  pay- 
ment of  a  note,  indorsed  by  the  party  receiving  it,  came  to 
his  hands,  inclosed  in  a  letter,  on  Sunday,  he  was  not  bound 
to  open  the  letter  until  Monday,  and  was  entitled  to  treat 
the  notice  as  though  it  were  received  on  Monday,  and  it 
was  held  that  notice  sent  by  him  on  the  following  Tuesday 
would  be  in  sufficient  time  to  bind  the  prior  party  to  whom 
it  was  addressed.* 

1  Howard  v.  Ives,  1  Hill,  263;  Hartford  Bank  v.  Stedman,  3  Conn.,  489. 
-  Lindo  V.  Unsworth,  2  Camp. ,  602 ;  Farmers'  Bank  v.  Vail,  21  N.  Y. , 
483;  HaUoweU  v.  Curry,  41  Pa.  St.,  332. 

3  Crawford  v.  Milligan,  2  Cranch  C.  C,  226 ;  McElroy  v.  English,  id.,  528. 


TIME   OF   GIVING    NOTICE.  451 

§  821.  Time  Refers  to  Hour  of  Mailing.— When  the 

service  of  notice  is  by  mail,  the  time  has  reference  to  the 
day  when  it  is  deposited  in  the  postofflce,  and  not  the  date 
of  its  receipt  by  the  party  to  be  charged.  When  the  party 
sending  the  notice  has  deposited  the  same  in  the  office, 
properly  addressed  to  the  prior  party,  he  has  performed  his 
entire  duty,  so  far  as  that  particular  party  is  concerned.  It 
is  of  no  consequence  to  him  what  accidents  or  delays  inter- 
vene to  prevent  the  party  from  receiving  the  notice  season- 
ably, or  from  receiving  it  at  all.  Having  no  control  over  the 
postoffice  department,  or  any  of  its  officers  or  employees,  he 
is  not  responsible  for  any  act  of  negligence  on  their  part, 
by  which  prior  parties  to  the  instrument  are  prevented  from 
receiving  notice  in  due  time.* 

§822.  Law  of  Place  of  Contract  Governs. —  Although 
the  regularity  of  the  protest  of  a  foreign  bill  of  exchange 
is  governed  by  the  law  of  the  place  of  acceptance  and 
payment,  whatever  affects  the  sufficiency  of  the  notice  of 
dishonor  of  negotiable  securities  of  any  kind  must  be  de- 
termined by  the  law  of  the  place  where  the  contract  is 
made.  That  is,  where  the  question  is  the  sufficiency  of  no- 
tice to  the  indorser,  it  must  be  solved  according  to  the  laws 
and  customs  of  the  place  where  the  contract  of  indorse- 
ment was  entered  into;  and  where  the  drawer  is  the  party 
to  be  notified,  by  the  law  of  the  place  where  the  bill  was 
drawn. 2 

§  823.  Consequence  of  Adopting  Unusual  Modes. — 
Where  the  party  giving  the  notice,  and  he  to  whom  it  is 
given,  reside  in  different  places,  so  that  the  manner  of  com- 
municating between  them  is  generally  through  the  post- 

1  Jones  V.  Warden,  6  W.  &  S.,  399;  Mt.  Vernon  Bank  v.  Holden,  2  R. 
I.,  467;  Nevius  v.  Bank,  10  Mich.,  547:  Marshall  v.  Baker,  3  Minn.,  320; 
Loud  V.  Merrill,  45  Me.,  516;  Harris  v.  Robinson,  4  How.,  336;  Bank  v. 
King,  14  N.  J.  L.,  45;  Woodcock  v.  Houldsworth,  16  M.  &  W.,  124. 

2  Wallace  v.  Agiy,  4  Mason,  336;  Aymar  v.  Sheldon,  12  Wend.,  439; 
Hyatt  V.  Bank  of  Ky.,  8  Bush,  193;  Chick  v.  Pillsbury,  24  Me.,  458; 
Whitwell  V.  Johnson,  17  Mass.,  449;  Bank  of  Alexandria  v.  Swann,  9 
Pet.,  33;  Hawks  v.  Salter,  4  Bing.,  715. 


452  NOTICE    OF    DISHONOR   OF    COMMERCIAL   PAPER. 

office,  this  is  not  to  be  understood  as  the  exclusive  medium 
which  may  be  employed.  Notice  of  dishonor  may  be  sent 
by  express,  or  by  the  hands  of  any  common  earner,  or  a 
private  messenger  may  be  employed  to  carry  the  same, 
whatever  be  the  distance  the  parties  may  live  apart.  But 
where  there  may  be  communication  by  mail,  the  adoption 
of  other  means  shifts  the  time,  to  be  considered  in  arriving 
at  a  determination  of  the  question  of  diligence  on  the  part 
of  the  one  giving  the  notice,  from  the  day  of  sending  to  the 
day  of  receiving  the  notice.  In  other  words,  by  the  adop- 
tion of  other  modes,  the  party  assumes  all  the  risks  of  delay 
in  transportation,  and  will  not  only  be  required  to  show  dili- 
gence in  his  messenger  or  carrier,  but  must  further  estabHsh 
that  the  notice  reached  the  party  to  be  charged  on  the  same 
day  it  would  have  come  to  hand  had  it  been  sent  by  mail ; 
but  it  need  not  appear  that  it  was  delivered  at  the  same  hour 
of  the  day  it  would  have  arrived  by  the  mail.^ 

§  824.  Question  of  Law  and  Fact. —  The  rule  giving  to 
holders  and  indorsers  one  day  within  which  to  send  notice 
to  prior  parties,  as  hereinbefore  explained,  should  be  under- 
stood as  a  rule  of  enlargement,  rather  than  of  limitation  of 
the  time  within  which  notice  should  be  given.  The  princi- 
ples upon  which  the  rule  is  founded,  as  well  as  the  occasion 
for  its  establishment,  seem  to  place  it  clearly  in  this  light. 
It  does  not  import  that  one  who  fails  to  send  or  give  notice 
within  the  time  fixed  by  the  rule  is  necessarily  guilty  of 
negligence.  It  does  declare  that  any  one  who  sends  or  de- 
livers the  notice  within  the  time  allowed  shall  not  be  treated 
as  negligent,  merely  because  he  might,  by  excessive  diligence, 
have  given  or  sent  the  notice  sooner.  This  rule  only  becomes 
restrictive  upon  those  from  whom  notice  is  due,  when  they 
can  show  neither  a  waiver  of  the  delay  by  those  entitled  to 
notice,  nor  a  reasonable  excuse  for  not  notifying  the  ante- 

1  Spalding  V.  Krutz,  1  Dill.  C.  C,  414;  Bancroft  v.  Hall,  1  Holt,  476; 
Pearson  v.  Crallan,  2  Smith,  404. 


TIME   OF   GIVING   NOTICE.  453 

cedent  parties  on  the  day  following  that  of  dishonor.  In 
other  words,  when  the  one-day  rule  of  diligence  is  observed, 
the  question  of  reasonableness  of  the  time  consumed  is  one 
purely  of  law}  Whereas,  when  the  sender  of  the  notice  in- 
dulges himself  beyond  this,  it  becomes  a  mixed  question  of 
law  and  fact.^  The  facts  being  ascertained,  whether  the 
notice  was  in  a  reasonable  time  becomes  a  question  of  law.' 

§825.  Waiver  and  Excuse. —  The  circumstances  prop- 
erly submissible  to  the  jury  under  the  instructions  of  the 
court,  which  go  to  establish  either  a  waiver  of  the  objections 
as  to  time,  or  to  excuse  delay  beyond  the  day  allowed  by 
law,  are  exceedingly  various  in  their  character,  and,  for  the 
purpose  of  avoiding  useless  repetition,  have  been  reserved  for 
separate  treatment  in  a  subsequent  part  of  this  chapter.^ 

§  826.  Deductions  from  Authorities  Cited. —  The  reader 
vrho  has  followed  the  current  of  authorities  on  this  branch 
of  our  subject  has  probably  discovered  that  although  there 
is  no  rule  as  to  time,  applicable  to  all  cases,  more  definite 
than  the  requirement  that  the  notice  must  be  within  a  rea- 
sonable time,  still  there  are  a  number  of  rules  by  which  the 
term  "  reasonable  "  is  clearly  defined,  in  its  application  to 
cases  of  different  classes.  Each  class  furnishes  its  own  rule, 
and  notwithstanding  the  conservative  inclination  of  the 
courts,  these  rules  have  been  allowed  to  grow  until  they 
have  become  as  thoroughly  incorporated  into  the  law  mer- 
chant as  any  other  portion  of  this  important  branch  of  our 
jurisprudence. 

§827.  No  Exceptions  to  Rule  Requiring  Notice  in  Rea- 
sonable Time. —  It  cannot  fairly  be  said,  in  cases  where 
notice  within  the  time  is  either  waived  or  excused,  that  they 
furnish  exceptions  to  the  rule.  The  general  rule  under 
which  they  are  associated  with  the  cases  in.  conformity  with 

»  Bray  v.  Hadwen,  5  M.  &  S.,  68. 
2  Wmiams  v.  Smith,  2  B.  &  Aid.,  496. 
s  Darbishii-e  v.  Parker,  6  East,  3. 
*See_pos^,  V,  Waiver  and  Excuse, 


454  NOTICE   OF   DISHONOR   OF   COMMERCIAL   PAPER. 

the  particuLar  rule  allowing  but  one  day  for  notice  is  that 
which  requires  notice  in  a  reasonable  time.  To  this  rule  there 
are  no  exceptions.  Notice  is  never  required  to  be  given  or 
sent  on  the  day  following  the  day  of  default,  when  such  re- 
quirement would  be  unreasonable.  The  instances  in  which 
notice,  within  the  time  mentioned,  is  either  waived  or  ex- 
cused, do  not  come  within  the  more  restricted  rule. 


MANNER   AND   MODE.  455 


TV.  Manner  and  Mode  of  Giving  Notice. 

§  828.  Division  of  Subject. 

829.  Where  and  How  Served,  if  Duly  Received 

830.  Illustration  of  Above. 

831.  Whether  Written  or  Oral. 

832.  Verbal  Notice  Delivered  to  Wife. 

833.  Should  be  Written  to  Distant  Parties. 

834.  Form  and  Contents. 

835.  No  Form  Prescribed. 

836.  Immaterial  Omissions. 

837.  Date  of  Maturity  Held  Immaterial. 

838.  Omission  of  Name  of  Payee. 

839.  Clerical  Error  Will  Not  Always  Vitiate. 

840.  Mere  Ambiguities  Not  Fatal. 

841.  Must  Show  Pi-esentment  on  Business  Day. 

842.  Signed  by  One  Having  Authority. 

843.  Where  and  How  Served. 

844.  Parties  Residing  ui  Same  Place. 

845.  Indorser  TemiDorardy  Absent. 

846.  What  Constitutes  Place  of  Business. 

847.  Where  Residence  Known. 

848.  By  Post,  DeUvery  Must  be  Proved. 

849.  Different  Meaning  of  the  Word  Town. 

850.  By  Post,  Between  Different  Villages  in  Same  Town. 

851.  Leaving  at  Place  of  Residence  or  Business. 

852.  Residence  in  One  Place,  Business  in  Another. 

853.  "Place  of  Busmess"  and  "  Residence,"  and  What  Amounts  to 

Leaviug  Notice  at  Either. 

854.  Residence. 

855.  Need  Not  be  Domicile. 

856.  Leaving  Notice  at  Residence. 

857.  Leavmg  at  Boarding  House. 

858.  Leaving  at  Counting  House  with  Pi-et ended  Agent. 

859.  Will  Not  Suffice  to  Leave  Near  the  Place. 

860.  Illustration  of  Same  Principle. 

861.  Corresponding  Number  Not  Sufficient  to  Identify. 

862.  Several  Places  of  Business,  Either  Will  Suffice. 

863.  Holder  May  Elect  Between  Place  of  Business  and  Residence. 

864.  May  be  Left  AVhen  No  One  There  to  Receive  it. 

865.  At  Business  Place,  Must  be  to  Proprietor. 

866.  Office  of  Directors  of  Corporation. 

867.  Case  Distinguished  from  Above. 

868.  Difference  in  Time  at  Residence  or  Business  Place. 


456  NOTICE   OF   DISIIONOK   OF    COMMEECIAL    PAPEK. 

§  869.  By  Mail  Between  Residents  of  Same  Place. 

870.  Letter  Cai-riers. 

871.  Drop  Letters  Required  to  be  Stamped. 
873.  Penny  Post. 

873.  Baltimore  and  Other  Large  Cities. 

874.  Established  Custom  of  Bank. 

875.  ]May  be  Sent  by  Post  When  Authorized  by  Indorser. 

876.  Parties  Living  Near  Place  of  Dishonor. 

877.  Illustration  of  Same. 

878.  Partners  —  One  Resident,  One  Non-resident. 

879.  Case  Requiring  Personal  Notice  to  Country  Lidorser. 

880.  Indorser  Tliree  Miles  Distant. 

881.  Party  Residing  at  a  Great  Distance  from  Postoffice. 

882.  Parties  Residing  Near  Different  Post  Towns. 

883.  Office  to  Which  Party  Usually  Resorts, 

884.  General  Adoption  of  Service  by  Mail. 

885.  Exceptional  Case. 

886.  Necessity  of  a  Rule. 

887.  Different  Offices  in  Same  Town. 

888.  General  Direction  to  Town  Prima  Facie  Sufficient. 

889.  Private  Messenger. 

890.  Addressed  to  Residence  or  Business  Place  When  Known. 

891.  Must  be  Addressed  to  Place  of  Residence. 

893.  Indorser  May  be  Notified  at  Place  He  Pretends  to  Reside. 

893.  Exception  to  Cases  Where  Mail  Most  Convenient  Mode. 

894.  When  Holder  May  Choose  Between  Places. 

895.  Illustration  of  Above. 

896.  Contra. 

897.  Distance  Made  the  Governing  Fact. 

898.  Criticism  of  Foregoing  —  True  Rule. 

899.  To  Principal  Office  of  Parish. 

900.  To  County  Seat. 

901.  To  Principal  Office  of  Town. 

902.  Should  be  Inquiry  Made. 

903.  Proper  Inquuy  for  Residence  in  Another  Town, 

904.  Sufficient  Inquuy  Question  for  Jury. 

905.  Transient  Indorser. 

906.  Temporary  Abode  Not  Residence. 

907.  Member  of  Congress. 

908.  Last  Ejiown  Residence,  When  Sufficient. 

909.  Diligent  Inquiry  for  Unknown  Residence. 

910.  Inclosing  Notices  to  All,  to  Last  Indorser. 

911.  Transitory  Place  of  Business. 

913.  By  MaU  When  Holder  and  Indorser  Are  Fellow  Townsmen. 

913.  When  Agent  in  Same  Place  with  Holder. 


MANNER   AND   MODE.  457 

§  914.  Circuitous  Notice  by  Mail  Between  Eesidents  of  Same  Place. 

915.  Designated  Place  of  Payment  —  Inquiiy. 

916.  Put  Upon  Inquii-y. 

917.  Insufficient  Inquiry. 

918.  Sending  Notice  to  Wliere  Instrument  Dated,  Insufficient. 

919.  Inquii-y  of  Maker,  Insufficient. 

920.  Acting  on  Information  from  One  of  the  Parties,  Sufficient. 

921.  Inquiiy  of  Drawer. 

922.  Previously  Acquired  Knowledge. 

923.  Former  Communications. 

924.  Surname  Alone  Insufficient. 

925.  Delay  Cliargeable  to  Indorser. 

926.  Holder  Misled  by  Place  of  Date. 

927.  Address  Should  Include  Name  of  State. 

928.  When  Address  Designated  by  Indorser. 

929.  Delay  from  Sending  by  Unusual  Route. 

§  828.  Division  of  Subject. —  In  deciding  whether  notice 
of  the  dishonor  of  negotiable  paper  has  been  given  in  a 
proper  manner  and  by  the  proper  modes,  the  questions  of 
primary  consideration  are,  1.  "Whether  the  notice  should  be 
oral  or  in  writing ;  2.  Its  form  and  contents ;  3.  "Where  and 
how  it  should  be  served  upon  the  party  to  be  charged. 

§  829.  Where  and  How  Served,  if  Duly  Received. —  The 
importance  of  the  last  mentioned  of  these  considerations 
only  arises  in  the  event  of  a  failure,  on  the  part  of  the  party 
sending  or  delivering  the  notice,  to  trace  it  to  the  person  to 
be  notified.  If  the  notice  be  full  and  accurate  enough  to 
inform  the  party  to  be  charged  of  all  the  important  partic- 
ulars connected  with  the  dishonor  of  the  bill  or  note ;  if  sent 
or  delivered  in  the  proper  time,  hy  the  proper  party,  and  to 
the  proper  party,  and  by  him  duly  received,  it  becomes 
immaterial  whether  it  was  personally  delivered  by  the  party 
interested  in  charging  him  with  notice,  by  a  private  mes- 
senger, or  was  inclosed  in  a  letter  sent  through  the  mails. 
It  may  be  delivered  at  the  residence  or  place  of  business  of 
the  party  notified,  come  to  his  hand  in  the  midst  of  a  public 
gathering,  overtake  him  on  his  travels,  or  be  handed  to  him 
on  the  street,  with  equal  effect,  provided  the  important  fact 
that  he  actually  received  it  can  be  estabhshed.  It  is  only 
when,  through  misadventure  or  accident,  the  notice  has 


45S  NOTICE   OF    DISHONOR   OF    COMMEnCIAL    PAPEH. 

failed  to  reach  the  indoi-ser  or  drawer  sought  to  be  charged, 
in  due  time,  or  the  fact  of  its  receipt  is  difficult  to  estab- 
lish, that  the  manner  of  service  becomes  of  any  impor- 
tance.^ 

§  830.  Illustration  of  Al)Ove.— So  it  has  been  held  that, 
where  a  note  was  dishonored  in  the  same  place  where  the. 
indorser  resided,  and  might  have  been  personally  served 
with  notice  of  the  dishonor,  that  a  written  notice,  sent 
through  the  postoffice,  and  received  by  him  on  the  day  he 
would  have  been  entitled  to  receive  it  had  it  been  personally 
served,  being  in  proper  form,  and  containing  information  of 
the  dishonor,  so  expressed  as  to  convey  mtelligence  thereof 
to  the  indorser,  was  sufficient,  notwithstanding  the  irregu- 
larity of  the  manner  of  sending  it,- 

§  831.  Whether  Written  or  by  Parol. —  For  the  purpose 
of  perpetuating  the  evidence,  and  estabhshing  the  fact  in 
case  of  dispute,  the  notice  should  generally  be  in  writing. 
This  is  invariably  true  of  foreign  bills,  from  the  necessity 
of  the  case.  There,  in  order  to  charge  prior  parties  with 
notice,  it  becomes  necessary  to  have  the  bill  officially  pro- 
tested, and  the  writing  of  the  notice  follows,  ahnost  as 
matter  of  course.  But  in  case  of  a  negotiable  promissory 
note  or  an  inland  bill  of  exchange,  where  the  drawer  or  in- 
dorser may  be  charged  with  notice  without  protesting  the 
paper,  there  is  a  greater  likehhood  of  a  departure  from  the 
safe  and  convenient  method  of  giving  notice  in  writing. 
And  unless  otherwise  provided  by  statute,  a  verbal  notice 
will  be  as  effective  as  a  written  one,  provided  it  conveys  the 
necessary  information  between  the  proper  parties,  within 
the  prescribed  time.'' 

1  Dickens  v.  Beal,  10  Pet.,  573;  Bradley  v.  Davis,  26  Me.,  45;  Hyslop 
V.  Jones,  3  McLean,  96;  Nevius  v.  Bank  of  Lansingburgh,  10  Mich.,  547; 
Smedesr.  Utica  Bank,  20  Johns.,  371;  Dicken  v.  Hall,  87  Pa.  St.,  379; 
First  Nat.  Bank  v.  Wood,  51  Vt.,  471. 

2  Grinman  v.  Walker,  9  Iowa,  426 ;  Shaylor  v.  ]\Iix,  4  Allen,  351 ;  Cabot 
Bank  v.  Warner,  10  id.,  522. 

^Housego  V.  Cowne,  2  M.  &  W.,  348;  WilUams  v.  Bank  of  United 
States,  2  Peters,  96;  Met  calf  v.  Richardson,  20  Eng.  L.  &  Eq.,  301; 
Thompson  v.  Wilhams,  14  Cal.,  160. 


MAJTNEK   AND   MODE.  459 

§832.  Terbal  Notice  Delivered  to  Wife.— In  the  case 
of  Housego  V.  Cowne,  the  notice  was  less  direct  than  an 
ordinary  verbal  notice  delivered  by  the  holder  or  his  mes- 
senger to  the  party  to  be  charged,  because,  in  that  case,  the 
communication  was  made  to  the  wife  of  the  party.  While 
the  authority  of  this  case  may  be  doubted,  so  far  as  it  ap- 
proved of  a  notice  delivered  by  word  of  mouth,  to  any  one 
but  the  party  to  be  charged,  still  it  seems  in  accord  with 
other  authorities  in  so  far  as  it  asserts  the  validity  of  verbal 
notice  of  dishonor.^ 

§  833.  Should  l)e  Written  to  Distant  Parties.— Where 
the  party  whose  duty  it  is  to  give  the  notice  resides  at  a 
distance  from  the  party  sought  to  be  charged,  it  is  unsafe, 
extremely  inconvenient,  and  sometimes  absolutely  impos- 
sible, to  give  the  notice  otherwise  than  in  writing.  It  is 
unsafe  to  send  a  private  messenger,  where  the  notice  may 
properly  be  inclosed  in  a  letter  and  sent  by  the  post,  be- 
cause the  party  sending  the  messenger  renders  himself 
liable  for  the  consequences  of  all  the  delays  resulting  from 
the  employment  of  the  unusual  medium  of  communication, 
and  assumes  aU  the  risk  of  the  notice  being  faithfully  de- 
livered by  his  representative."  The  inconvenience  and  addi- 
tional expense  of  sending  a  verbal  notification,  when  it  may 
be  sent  through  the  post,  is  so  manifest  as  not  to  require 
illustration.  It  becomes  imjjossihle  to  give  sufficient  notice 
verbally  when,  from  the  pecuhar  situation  of  the  parties, 
and  the  means  of  travel  between  them,  to  undertake  to 
make  oral  communication  of  the  fact  of  dishonor,  or  to 
send  a  private  messenger  for  that  purpose,  would  involve 
material  delay  beyond  the  time  within  which  the  notice 
would  reach  the  party  by  the  post.^ 

§  834.  Form  and  Contents. —  As  to  the  form  of  the 
notice  there  is  no  inflexible  rule.  It  will  be  in  substantial 
conformity  to  law  if  it  contains  a  description  of  the  bill  or 

1  Compare  cases  cited  above. 

2  Infra. 
^  Infra. 


460  NOTICE   OF   DISHONOR   OF   COMMERCIAL   PAPEB. 

note,  drawn  with  sufficient  accuracy  to  identify  the  same, 
together  with  the  information  that  the  paper  has  been  duly 
presented  and  dishonored,  and  that  the  party  notified  is 
looked  to  for  reimbursement.'  The  end  to  be  accomplished 
by  the  notice  is  to  inform  the  party  notified  that  the  partic- 
ular paper  was  presented  at  maturity  for  payment  and  pay- 
ment refused.  This  may  be  done  with  considerable  circum- 
locution and  verbiage,  or  very  tersely  and  succinctly,  with 
the  same  effect.  But  whatever  form  of  words  is  adopted 
(and  in  this  considerable  latitude  is  permissible),  it  must  not 
fall  short  in  substantial  compliance  with  the  above  require- 
ments. 

§  835.  No  Form  Prescribed. —  This  is  one  of  those  duties 
enjoined  by  the  law  merchant  which  cannot  be  safely  re- 
duced to  rigid  formahty.  To  prescribe  an  inflexible  form 
for  notices  of  this  kind,  though  it  might  be  a  matter  of  con- 
venience in  exceptional  cases,  would  in  a  majority  of  in- 
stances merely  serve  as  a  trap  to  the  unprofessional  dealer  in 
securities  of  this  sort.  For  this  reason  the  interests  of  the 
trading  community  are  better  subserved  by  enjoining  upon 
the  holders  of  commercial  paper,  upon  which  others  are 
conditionally  liable,  the  simple  duty  of  notifying  antecedent 
parties,  in  case  of  non-payment  or  non-acceptance,  so  as 
reasonably  to  apprise  them  of  the  dishonor  of  the  paper 
upon  which  they  are  sought  to  be  charged,  trusting  to  the 
suggestions  of  common  sense  for  fitting  terms  in  which  to 
convey  the  information.  As  free  as  is  this  plain  require- 
ment from  technical  abstruseness,  it  has  nevertheless  been 
the  subject  of  earnest  dispute  and  no  inconsiderable  amount 
of  litigation.  It  may  be  instructive,  therefore,  to  note  the 
manner  in  which  the  courts,  in  deciding  adjudicated  cases, 
have  held  as  to  what  is  a  substantial  description  of  the  note 
or  bill,  and  what  amounts  to  sv,jjicie7it  information  of  its 
dishonor. 

§  836.  Immaterial  Omissions. —  It  has  been  held  in  case 
of  the  dishonor  of  a  negotiable  promissory  note,  indorsed 

I  Infra.    See,  also,  Story  on  Prom.  Notes,  §  348,  and  cases  cited. 


MANNEE    AND    MODE.  4G1 

by  the  party  sought  to  be  charged,  that  where  the  notice 
gave  the  date  and  amount  of  the  note,  the  date  of  its  ma- 
turity, the  name  of  the  maker,  the  fact  of  indorsement,  and 
that  it  was  made  payable  to  such  indorser,  together  "unth 
the  information  that  it  had  been  presented  at  maturity  and 
payment  refused,  was  in  all  respects  a  good  and  sufficient 
notice,  notwithstanding  an  omission  to  state  the  name  of 
the  holder  in  whose  interest  the  notice  was  given,  and  not- 
withstanding, also,  that  the  accrued  interest  was  not  men- 
tioned.^ 

§  837.  Date  of  Maturity  Held  Immaterial. —  So  it  was 
held  that  the  notice  was  not  defective,  merely  because  it 
failed  to  state  specifically  the  date  of  maturity,  it  not  ap- 
pearing that  there  was  any  other  negotiable  instrument  to 
which  the  notice  might  apply.  Had  there  been  any  such 
other  paper  in  existence,  that  fact  could  have  been  shown 
by  the  party  sought  to  be  charged,  and  in  the  absence  of 
such  evidence,  there  was  no  probability  that  the  party  was 
misled  by  the  omission.^ 

§  838.  Omission  of  Name  of  Payee. —  So  also,  has  it 
been  held,  where  the  name  of  the  jxiyee  Avas  omitted  from 
the  notice,  that  this  would  not  be  regarded  as  a  substantial 
defect,  the  description  being  otherwise  sufficiently  full  and 
complete  to  identify  the  note  upon  which  the  part}^  was 
sought  to  be  charged.^ 

§839.  Clerical  Error  Will  Not  Always  Vitiate.— A 
mistake  amounting  to  nothing  more  than  an  act  of  clerical 
misprision  will  not  alwa3"s  vitiate  the  notice.  As  where  a 
notice  of  dishonor  stated  that  the  note  Avas  due  on  a  day 
which  was  prior  to  the  last  day  of  grace,  and  also  gave  the 
name  of  the  maker  as  "  Jotham  Gushing,"  instead  of  Jotham 

1  Howe  V.  Bradley,  19  Me.,  31.  See,  also,  Mills  v.  United  States  Bank, 
11  Wheat.,  431;  Davenport  v.  Gilbert,  4  Bosw.,  532;  Bradley  v.  Davis, 
26  Me.,  45. 

2 Gates  V.  Beecher,  60  N.  Y.,  518.  See,  also,  Home  Ins.  Co.  v.  Green, 
19  N.  Y.,  518,  and  Youngs  v.  Lee,  12  id.,  551.  In  the  latter,  held  that 
omission  of  both  date  and  time  of  payment  was  immaterial. 

3  Brooks  V.  Blaney,  62  Me.,  456. 


462  NOTICE   OF   DISHONOR   OF   COMMEKCIAL   PATER. 

Cushman,  as  it  should  have  been,  the  court  refused  to  hold, 
as  a  matter  of  law,  that  these  errors  were  sufficiently  im- 
portant to  vitiate  the  notice ;  but  declared  that  it  was  for 
the  jury  to  decide  from  the  evidence  whether  defendant, 
having  no  other  note  at  the  bank,  was  misled  by  the  mis- 
take. The  jury  deciding  that  he  was  not  so  misled,  the  ver- 
dict was  sustained.^ 

§  840.  Mere  AmWguities  Not  Fatal. —  Nor  will  mere 
ambiguities,  arising  from  clumsy  phraseology  in  the  notice 
destroy  its  effect.  As  where  a  notice  was  in  the  following 
form:  "December  23,  1871.  Please  take  notice  that  M. 
D.  S.  and  C.  F.  A.'s  note,  dated  Baltimore,  September  20, 
1871,  pa3"able  ninety  daj^s  after  date  to  the  order  of  E.  S., 
for  $340,  payable  at  Third  JSTational  Bank,  and  by  you  in- 
dorsed, is  delivered  to  me  b}^  the  cashier  of  the  Western 
Bank  of  Baltimore,  for  protest,  and  the  same  not  being 
paid,  pa}Tnent  thereof  having  been  demanded  and  refused, 
is  protested,  and  will  be  returned  to  the  cashier,  and  that 
you  will  be  held  liable  for  the  payment  thereof."  This  was 
held  sufficient  notice  of  presentment  and  non-payment  of  the 
note  on  the  22d  day  of  December.-  It  will  be  noticed  that 
the  date  of  the  notice  is  the  23d,  and  that  the  delivery  to 
the  notary  is  stated  in  the  present  tense.  The  inference 
might  follow  that  the  demand  was  made  by  the  party  giv- 
ing notice  of  that  fact,  and  could  not  well  be  made  before 
he  received  the  note.  Though  the  above  can  hardly  be 
commended  as  a  good  model  for  notices  of  this  kind,  yet  its 
deficiencies  are  so  aided  by  legal  intendment  that  it  was 
held  to  convey  to  the  party  notified,  information  of  the  fact 
that  the  note  was  presented  on  the  day  it  became  due  ac- 
cording to  its  tenor  and  date,  as  recited  in  the  notice,  and 
that  ])ayment  was  then  and  there  refused.  This  case  is  dis- 
tinguished from  Eansom  v.  Mack,^  where  the  notice  given 
was  a  demand  of  payment  on  the  day  following  the  date  of 

'Smith  V.  Whiting,  12  Mass.,  6. 

2  Reynolds  v.  Appleman,  41  Md. ,  615. 

3  2  Hill,  587. 


MANNER   AND    MODE.  463 

the  maturity  of  the  note ;  from  Routh  v.  Eobertson/  where 
it  clearly  appeared  from  the  notice  that  the  protest  was 
made  before  the  note  was  due ;  from  Etting  v.  Schuylkill 
Bank,^  and  Townsend  v.  Lorain  Bank,^  where  the  notice  was 
of  presentment  before  the  instrument  was  due. 

§  841.  Must  Show  Presentment  on  Business  Day. —  But 
though  no  particular  form  of  w^ords  is  necessary,  the  notice 
must  contain  the  information  that  the  note  or  bill  has  been 
dishonored.  This  would  not  be  accomplished  by  a  state- 
ment that  it  was  presented  and  payment  refused  on  the  4th 
day  of  July  or  other  legal  holiday,  although  the  demand 
had  in  fact  been  made  on  the  day  previous.  In  such  a  case 
it  was  held  b}"  the  appellate  court  that  it  should  have  been 
decided  by  the  trial  court,  as  matter  of  law,  that  the  notice 
was  insufficient.'* 

§  842.  Signed  by  One  Having  Autliority. —  So,  also,  has 
it  been  held  that  a  notice  given  in  writing,  as  coming  from 
the  holder  of  the  note,  and  signed  with  his  name,  by  one 
who  had  neither  special  nor  general  authority  to  give  the 
notice  in  his  behalf,  was  insufficient  for  the  purpose  of 
charirino-  the  indorser  to  whom  the  notice  was  delivered, 
though  it  w^as  otherwise  in  proper  form,  and  was  given  in 
the  usual  time.-^ 

§843.  Where  and  How  Served. —  The  consideration  of 
the  question  of  where  and  how  a  notice  of  this  sort  may  be 
effectually  served,  without  imposing  upon  the  party  giving 
it  the  duty  of  seeing  that  it  is  actually  received  in  time,  will 
render  it  necessary  to  give  the  rules  applicable  respectively 
to  cases  where  the  party  giving  the  notice,  and  the  one 
sought  to  be  charged,  reside  or  carry  on  business  in  the  same 
place ;  where  the  party  to  be  charged  resides  contiguous  to 

1 11  Sm.  &  M.,  382. 

2  2  Pa.  St.,  355. 

3  2  Ohio,  345. 

'  Ransom  v.  Mack,  siipra. 

5  Cabot  Bank  v.  Warner,  10  Allen,  523.  It  must  also  be  directed,  on 
its  face,  to  the  one  sought  to  be  charged.  Remer  v.  Downer,  23  Wend., 
620. 


464  NOTICE    OF   DISnOXOR    OF    COMMERCIAL    PAPER. 

the  place  where  the  paper  is  dishonored,  or  the  party  sub 
sequent  to  him  in  liability,  and  from  whom  the  notice  should 
come,  resides ;  and  where  the  sender  of  the  notice,  and  he  to 
whom  it  is  sent,  reside  or  carry  on  business  in  different 
places.  The  necessity  of  considering  these  three  classes 
separately  under  this  division  of  our  subject  arises  from  the 
fact  that  they  are  governed  by  different  rules,  both  as  to 
the  place  and  the  manner  of  service.^ 

§844.  Parties  Residing  in  Same  Place. —  Where  the 
party  sought  to  be  charged  by  the  notice  resides  or  carries 
on  business  in  the  same  city  or  village  where  the  paper  is 
dishonored,  or  from  whence  the  notice  comes,  it  should  gen- 
erally be  served  upon  him  personally,  or,  what  is  regarded 
as  tantamount  thereto,  delivered  at  his  usual  place  of  abode, 
or  his  place  of  business.^ 

§  845.  Indorse!*  Temporarily  Absent. —  In  pursuance  of 
this  rule,  it  was  held  that  where  the  sender  of  the  notice 
and  the  party  to  be  notified  resided  in  the  same  town,^  the 
latter  could  not  be  charged  by  notice  sent  to  him  through 

1  Where,  at  the  time  the  holder  received  the  note,  the  indorser  was 
known  to  be  an  inmate  of  a  certain  boarding-house,  which  he  left  before 
the  maturity  of  the  obligation,  and  had  embarked  for  Europe ;  but,  on 
inquiring  for  him,  for  the  purpose  of  notifying  liim  of  the  dishonor  of 
the  note,  the  holder  was  informed  by  the  proprietor  of  the  house  that 
he  was  still  boarding  there,  it  was  held  that  notice  left  for  him  at  tlie 
boarding-house  was  sufficient.  McMurtrie  r.  Jones,  3  Wash.,  206.  Per- 
sonal service  is  good  wherever  it  may  be  effected.  Foster  v.  McDonald, 
5  Ala.,  376;  Bank  of  U.  S.  v.  Corcoran,  2  Pet.,  121 ;  Gilchrist  v.  Donnell, 
53  Mo.,  591;  Shelburne  Nat.  Bank  v.  Townsley,  107  Mass.,  444. 

2Wilhams  v.  Bank  of  U.  S.,  2  Peters,  96;  Timms  v.  Dehsle,  5  Blackf., 
447;  Bowling  v.  Harrison,  6  How..  248;  Bussai'd  v.  Levering,  6  Wheat., 
104;  Nashville  Bank  v.  Bennett,  1  Yerg.,  166;  Boyd  w.  City  Sav.  Bank,  15 
Graft.,  501;  Pierce  v.  Pendar,  5  Mete,  352;  John  v.  City  Nat.  Bank,  62 
Ala.,  529. 

3  The  word  "  town  "  used  here  is  intended  to  signify  about  the  same 
tiling  as  is  understood  by  "village"  in  those  portions  of  the  country 
where  the  counties  are  divided,  for  purposes  of  local  government,  into 
towns,  which  answer,  as  nearly  as  may  be,  to  the  townships,  and  per- 
haps parishes,  of  other  sections,  where  town  is  understood  to  mean  sub- 
stantially the  same  as  village. 


MAXNER   AND    MODE.  465 

the  post,  and  directed  to  him  at  the  place  where  he  was 
then  sojourning,  he  being  teraporaril}^  absent  from  home.- 

§  846.  What  Constitutes  Place  of  I5iisiiioss. —  So,  where 
the  indorser  lived  at  board  in  the  city  of  Bangor,  and 
was  frequently  absent  from  home  attending  to  his  busi- 
ness, but  had  a  place  in  the  counting  room  of  a  business 
firm  of  the  same  city,  Avhere  he  usually  transacted  business 
when  not  absent,  and  this  was  all  the  place  of  business  he 
had,  it  was  held  that,  in  contemplation  of  law,  he  had  both 
a  place  of  business  and  a  residence  in  Bangor,  at  either  of 
which  a  notice  should  be  left  for  him  in  order  to  fix  his  lia- 
bility upon  the  contract  of  indorsement,  provided  he  was 
not  personally  notified  in  time  elsewhere.^ 

§847.  Where  Residence  Known. —  So,  also,  where  the 
holder  of  a  note  which  had  been  duly  presented,  and  pay- 
ment refused,  resided  in  the  city  of  IS'ew  York,  and  the  in- 
dorser was  also  a  resident  of  the  same  city,  but  lived  at 
Kip's  Bay,  some  three  and  a  half  miles  from  the  postoffice, 
and  the  holder  knew  where  such  indorser  lived,  it  was  held 
that  a  notice  inclosed  in  a  letter  and  deposited  in  the  post- 
oflBce  of  the  city  was  not  sufficient  to  charge  the  indorser, 
in  the  absence  of  any  proof  that  the  same  was  received  by 
him  on  the  day  following  the  date  of  dishonor.  In  decid- 
ing this  case,  stress  was  laid  upon  the  fact  that  the  carriers 
did  not  carry  letters  to  Kip's  Bay,  which  at  that  time  was 
about  one  mile  beyond  the  compact  portion  of  the  city 
where  letters  were  usually  delivered.' 

§  848.  By  Post,  Delivery  Must  be  Proved.— The  same 
case  was  again  before  the  same  court  under  a  somewhat 
different  aspect.     At  the  second  trial  it  appeared  that  the 

1  Wilcox  V.  McNutt,  2  How.  (Miss.),  7T6. 

2 Pierce  v.  Pendar,  5  Mete,  352.  See  Brindley  v.  Barr,  3  Harr.  (Del.), 
419;  Shelburne  Falls  Bank  v.  Townsley,  107  Mass.,  444;  Gilchrist  v.  Don- 
nell,  53  Mo.,  591 ;  Neviusr.  Bank  of  Lansingburgh,  10  Mich..  547 ;  Smedes 
V.  Utica  Bank,  20  Johns.,  371 ;  Sheldon  v.  Benham,  4  Hill,  129;  Todd  r. 
Edwards,  7  Bush,  89;  Neal  v.  Taylor,  9  id.,  380. 

3 Ireland  v.  Kip,  10  Johns.,  489.     See,  also,  Bowling  v.  Arthur,  34 
Miss.,  41 ;  Bowling  v.  Han'ison,  6  How.  (U.  S.),  248. 
80 


4.G6  NOTICE    OF   DISHONOR   OF    COMMEKCIAL   PAPER. 

indorser  had  given  orders  at  the  postoiJice  to  have  his  let- 
ters left  at  a  certain  honse  on  Frankfort  street,  where  he 
called  or  sent  for  them  every  day.  But  it  was  stiU  held 
that  the  notice  was  insufficient  unless  it  was  proved  that 
the  letter  containing  it  was  actually  delivered  at  the  house 
on  Frankfort  street  on  the  day  following  that  on  which 
payment  was  refused.* 

§849.  Different  Meaning  of  the  Word  Town.— The 
general  test  as  to  whether  the  situation  of  the  parties  is 
such  that  information  of  the  dishonor  of  the  paper  may  be 
communicated  by  mail,  so  as  to  affect  the  party  notified 
whether  he  receives  the  notice  or  not,  is  their  respective 
places  of  residence.  In  some  of  the  cases  the  notice  is  re- 
quired to  be  personal,  or  at  the  usual  place  of  abode  or 
})lace  of  business  of  the  party  notified  when  they  reside  in 
the  same  town;  wliile  in  other  cases  communication  by 
mail  is  expressly  upheld  between  fellow-townsmen.  The 
conflict  between  the  decisions  in  these  cases  is  more  apparent 
than  real.  The  difference  arises  from  the  fact  that  in  some 
of  the  states  the  word  "  town  "  has  a  different  signification 
from  that  given  it  in  others  —  the  rule  being  substantially 
the  same.  In  those  states  where  postal  communication  is 
inhibited  between  residents  of  the  same  town,  the  word  is 
used  synonymously  with  "village."  It  means  a  collection 
of  houses,  or  is  intended  to  distinguish  town  from  country. 
While  in  those  states  where  the  courts  favor  this  means  of 
communication  between  those  residing  in  the  same  town, 
the  word  is  used  to  designate  a  division  of  the  county  which 
may  include  no  urban  population  at  all,  and  frequently  has 
several  postoffices.  In  Kew  England,  and  some  of  the  older 
states,  a  town  may  include  several  villages,  and  correspond 
to  what  are  elsewhere,  particularly  in  the  West,  called  town- 
ships. 

§  850.  By  Post  Between  Different  Tillages  in  Same 
Town. —  It  is  accordingly  held  that  the  post  is  the  propei 

illJohns.,231. 


MANNER   AND    MODE.  467 

means  of  communication  between  residents  of  different 
villages  in  the  same  town,  where  such  villages  have  separate 
and  distinct  postotfices.^ 

§  851.  Leaving  at  Place  of  Residence  or  Bnsiness. —  A 
notice  duly  delivered  at  the  last  known  place  of  residence, 
or  place  of  business,  of  a  party  to  a  bill  or  note  who  has 
absented  himself  from  his  usual  place  of  abode,  will  be  as 
effective  as  though  it  were  personally  delivered  to  the  one 
for  whom  it  was  intended.^  "Were  the  rule  laid  down  dif- 
ferentl}^,  it  would  afford  a  convenient  facility  for  the  evasion 
of  liability  by  one  who  had  assumed  the  conditional  obliga- 
tion of  indorser.  If,  by  simply  absenting  himself  from  his 
home,  he  might  cast  upon  the  holder  the  onus  of  tracing  out 
his  whereabouts  in  order  to  serve  him  with  notice  of  dis- 
honor of  the  paper,  the  temptation  to  evade  such  unwelcome 
intelligence  would  be  too  strong  for  the  powers  of  resistance 
of  a  large  majority  of  the  trading  community. 

§  852.  Residence  in  One  Place,  Bnsiness  in  Another. — 
Simple  and  reasonable  as  the  rule  seems,  requiring  personal 
notice  to  resident  parties,  and  fair  and  lil>eral  as  the  pro- 
vision appears  allowing  service  at  the  place  of  business  or 
the  residence  of  the  party  to  be  notified,  at  the  option  of 
the  holder,  the  verj^  latitude  of  construction  which  has 
arisen  from  necessity,  and  been  prompted  by  experience, 
has  had  the  effect,  in  some  instances,  to  surround  the  ad- 
ministration of  the  law  with  additional  complications  and 
difficulties.  It  not  unfrequently  occurs  that  the  residence 
of  the  party  and  his  place  of  business  are  in  separate  and 
distinct  places,  and  one  or  the  other  of  such  places  may  be 
where  the  note  or  bill  is  dishonored.  Such  was  the  fact  in 
the  case  of  Yan  Yechten  v.  Pruyn.^  The  note  was  payable 
in  Catskil,  where  the  indorser  resided  with  his  famih^,  but 
his  place  of  business  was  in  the  city  of  New  York,  where 


>  Ransom  v.  Mack,  2  HiU  (N.  Y.),  587;  Shaylor  v.  Mix,  4  Allen,  351. 
-Jones  V.  Mansker,  15  La.,  51 ;  Stedman  v.  Gooch,  1  Esp.,  3. 
:'18N.  Y.,549. 


4GS  NOTICE    or   DISnONOK   OF   COMiMEECIAL   PAPER. 

he  spent  four  days  of  the  week,  and  received  some  of  his 
letters.  Notice  of  the  non-payment  of  the  note  was  sent 
to  him  inclosed  in  a  letter  deposited  in  the  postoffice  at  Cat- 
skil,  and  addressed  to  him  at  his  place  of  business  in  [New 
York.  It  was  held  insufficient,  for  the  reason  that  notice 
should  have  been  left  at  his  residence  in  Catskil,  even  though 
that  mode  of  service  might  have  involved  delay  in  convey- 
ing the  necessary  information.  That  such  delay  Avould 
necessarily  have  followed,  can  scarcely  be  doubted,  yet  the 
decision  is  in  strict  conformity  to  a  rule  established  for 
the  mutual  protection  and  convenience  of  the  parties,  and 
one  which  in  this  instance  the  holder  would  have  best  con- 
sulted his  own  convenience,  as  well  as  his  own  security,  by 
following.' 

§853.  '^Place  of  Business"  and  "Residence,"  and 
What  Amounts  to  Leaving  Notice  at  Either. —  The  courts 
have  found  it  necessary  to  indicate  what  was  meant  by  the 
residence  and  what  by  the  place  of  business  of  the  indorser 
or  di^awer.  The}''  have  likewise  judicially  determined  what 
amounted  to  a  service  of  the  notice  by  leaving  it  at  either 
the  residence  or  place  of  business. 

§854.  Residence. —  In  designating  the  residence  as  the 
proper  place  for  such  service,  it  was  not  intended  to  restrict 
the  party  notifying  to  the  private  residence  of  antecedent 
parties,  for  the  manifest  reason  that  they  might  be  residents 
of  the  city,  town  or  village,  and  still  have  no  private  resi- 
dence, in  the  popular  sense  of  the  term,  either  there  or  else- 
where. What  is  commonly  understood  by  tlie  residence  of 
a  person  within  a  city,  is  his  private  mansion  or  house  occu- 
pied by  himseK  and  family  exclusively.  It  would  be  ex- 
tremely absurd,  as  weU.  as  embarrassing  to  the  courts,  to 
give  the  term  used  in  this  connection  such  a  restricted  mean- 
ing. It  might  render  utterly  impracticable  the  proper  noti- 
fication of  any  but  householders,  except  where  the  notice 
was  delivered  to  them  in  person.     The  liberal  and  rational 

1  Curtis  v.  State  Bank,  6Blackf,,  312. 


MANNER   AND   MODE.  469 

construction  given  to  the  term  is  illustrated  to  some  extent 
in  the  case  of  Pierce  v.  Pendar.^ 

§855.  Need  Not  Ibe  Domicile. —  It  has  also  been  held 
that  for  a  party  to  be  a  resident  within  the  meaning  and 
contemplation  of  the  law  merchant,  it  is  not  necessary  that 
he  should  be  domiciled  in  the  same  place  —  nor  even  that 
he  should  be  domiciled  at  all.  It  was  held  sufficient  to  bring 
the  place  within  the  meaning  of  the  law  that  it  was  the 
place  of  abode  at  the  time,  and  an  instruction  to  the  effect 
that,  in  order  to  constitute  a  house  'the  place  of  residence  of 
the  occupant,  it  should  be  where  he  was  domiciled,  was  de- 
clared to  be  erroneous.-  But  it  would  seem  where  a  party 
to  a  biU  or  note  has  his  domicile  in  one  place  and  his  resi- 
dence in  another,  that  notice  left  at  either  within  a  reason- 
able time  will  be  sufficient  to  satisfy  the  law.' 

§  856.  Leaving  Notice  at  Residence. —  In  one  case,  how- 
ever, where  the  notary  who  gave  the  notice,  upon  calling 
at  the  residence  of  the  party  for  that  purpose,  met  a  boy  in 
the  door-3^ard,  who  said  he  was  the  indorser's  son,  to  whom 
he  gave  the  notice,  with  the  request  that  he  would  hand  it 
to  his  father,  and  afterwards  saw  him  approach  the  house 
with  the  notice,  but  did  not  see  him  enter,  such  service  was 
held  insufficient  to  charge  the  indorser.*  In  this  case  the 
mere  leaving  the  notice  in  the  hands  of  one  about  the  house, 
without  being  able  to  show  even  that  the  message  was  taken 
within,  much  less  that  it  actually  came  to  the  hands  of  the 
one  for  whom  it  was  intended,  was  not  such  a  leaving  it  at 
the  residence  of  the  party  as  the  law  enjoins. 

§  857.  Leaving  Notice  at  Boarding  Honse. —  The  rule 
as  above  laid  doAvn  seems  to  bear  more  harshly  upon  the 
holders  of  dishonored  commercial  paper  than  that  declared 
in  the  case  of  Bank  of  United  States  v.  Ilatch,^  where  the 

1  Ante,  §  846,  note. 

2  Young  V.  Durgin,  15  Gray  (Mass.),  264. 
SMerz  v.  Kaiser,  20  La.  An.,  577. 

<  Adams  v.  Wright,  14  Wis.,  408. 
5  1  McLean,  90;  S.  C,  6  Peters,  250. 


470  KOTICK    OF   DISHOXOE   OF    COMMEECIAL   PAPEE. 

indorser  was  living  in  lodgings  at  a  public  boarding-house, 
and  the  notary  called  and  inquh-ed  of  another  boarder,  by 
whom  he  was  informed  that  the  party  was  absent,  where- 
upon the  notice  was  delivered  to  such  other  boarder,  and  he 
was  requested  to  hand  it  to  the  absent  indorser  on  his  return. 
This  was  held  a  sufficient  service  of  the  notice,  whether,  as 
a  matter  of  fact,  it  was  received  by  the  person  for  whom 
it  was  intended  or  not. 

§  858.  Leaving  at  Counting  House  with  Pretended 
Agent. —  So,  also,  was  a  service  held  sufficient  which  con- 
sisted in  leaving  the  notice  at  the  counting-house  of  the 
party  to  be  notified,  with  one  who  represented  himself  as 
liis  agent,  notwithstanding  it  subsequently  transpired  that 
the  representations  of  the  pretended  agent  were  utterly 
false,  and  he  ^vas  not  authorized,  either  generally  or  spe- 
cially, to  represent  his  alleged  principal  in  that  or  any  simi- 
lar' transaction.^ 

§  859.  Will  Not  Suffice  to  Leave  Near  the  Place.—  But 
there  can  hardly  be  said  to  be  a  conflict  between  the  two 
cases  last  cited  and  that  of  Adams  v.  Wright.^  The  differ- 
ence of  conclusion  reached  seems  to  emphasize  the  impor- 
tance of  a  strict  compliance  with  the  requirement  to  deliver 
the  message  at  the  place  of  residence  or  business,  and  that 
the  law  will  not  be  satisfied  by  merely  leaving  it  in  proxim- 
ity thereto,  when  the  omission  is  the  result  of  carelessness 
or  indifference  on  the  part  of  the  messenger  who  has  the 
notice  in  charge.  In  the  tAvo  cases  cited  above,  from  Avhich 
are  taken  the  illustrations  of  a  liberal  construction  of  the 
provision  in  favor  of  the  holder  of  the  paper,  there  was  an 
appearance  of  the  utmost  diligence  compatible  with  the  pe- 
culiar circumstances  and  surroundings  of  the  parties.  An}' 
failure  of  the  indorser  to  receive  the  notice  in  time,  in  either 
case,  was  the  result  of  his  absence  from  his  place  of  resi- 
dence or  business,  and  in  leaving  it  in  the  one  case  with  the 
fellow  boarder,  or  in  the  other  with  the  pretended  agent, 

1  Jacobs  V.  Turner,  2  La.  An.,  964. 

2  5wj3ra,  §856. 


MANNER   AND   MODE.  471 

messenger  availed  himself  of  the  means  which  presented 
me  strongest  hkelihood  of  accomplishing  the  desired  end. 
A  well  defined  departure  from  the  rule  as  to  where  the  no- 
tice should  be  left,  when  it  is  not  personally  served  upon  a 
resident  party,  would  be  fraught  with  considerable  hazard 
to  the  rights  of  indorsers  and  drawers,  for  the  reason  that 
where  it  is  once  admitted  that  a  notice  which  is  construct- 
ive in  its  nature  may  be  legally  served  by  a  deposit  else- 
w^here  than  at  such  places  as  the  party  to  wliom  it  is  directed 
habitually  attends,  the  extent  of  the  departure  will  become 
a  mere  question  of  caprice.  It  is  better  to  be  governed  by 
a  rule  which  may  occasionally  work  harshly  than  to  be 
without  any  rule  at  all. 

§860.  Illustration  of  Same  Principle. —  So  where  an 
indorser  of  negotiable  paper  was  carrying  on  business  in 
the  third  story  of  a  building  occupied  by  numerous  other 
persons,  between  whom  and  himself  there  was  no  business 
connection  or  relation  other  than  that  of  neighborhood,  it 
was  held  that  such  a  notice  could  not  be  properly  serv^ed  b}' 
leaving  it  on  one  of  the  desks  of  an  office  in  the  second 
story  of  the  same  building.' 

§  861.  Corresponding  Number  Not  Sufficient  to  Iden- 
tify.—  So,  also,  has  it  been  held  not  to  be  a  sufficient  proof 
of  service,  that  the  notice  was  left  at  a  building  with  a 
number  corresponding  to  the  number  of  the  house  men- 
tioned on  the  bill,  as  the  residence  or  place  of  business  of 
the  indorser.- 

§  862.  Several  Places  of  Business,  Either  Will  Suffice. 
But  where  the  indorser  or  drawer  carries  on  business  at 
several  distinct  places  in  the  city  or  village  in  which  the 
note  or  bill  is  payable,  in  case  of  non-acceptance  or  non- 
payment, notice  may  be  properly  served  at  either  one  of 
such  places  of  business  without  the  holder  being  required 

JKleinmann  v.  Boerstein,  32  Mo.,  311. 
2  Davenport  v.  Gilbert,  4  Bosw.,  533. 


472  K0TIC2    OF   DISnOXOE   OF    COMMERCIAL   PAPER. 

to  determine  at  which  of  them  there  would  be  the  greatest 
Ukehhood  of  finding  the  party  at  any  particular  time.' 

§803.  Holder  May  Elect  Between  Place  of  Business 
and  Residence. —  AViien  the  party  to  be  notified  both  resides 
and  carries  on  business  in  the  same  place  w^here  the  note  is 
dishonored,  it  seems  that  the  holder  is  unrestricted  in  his 
choice  of  methods  of  making  the  service.  It  may  with 
equal  propriety  be  served  at  either  the  residence  or  the  count- 
ing-room, by  leaving  it  in  the  hands  of  some  one  who  is 
apparently,  at  least,  in  charge  of  the  place,  or  member  of 
the  family,  or  in  some  manner  connected  with  either  the 
household  or  the  business  affairs  of  the  party.  And  when 
it  is  impracticable  to  leave  the  notice  with  any  one  sustain- 
ing intimate  relations  toward  the  one  to  w^hom  it  is  ad- 
dressed, it  may,  as  we  have  seen,  be  served  with  equal  effect 
by  leaving  it  with  a  stranger. 

§  864.  May  be  Left  WJien  No  One  There  to  Receive  it. 
And  when  there  is  not  even  a  stranger  at  the  place  where 
the  drawer  or  indorser  is  sought,  w^ith  whom  the  notice  may 
be  left,  be  it  at  his  residence,  or  his  place  of  business,  the 
written  message  may  be  deposited  there,  and  by  being  so 
left,  will  charge  the  party  as  effectively  as  though  it  had 
been  delivered  into  his  owai  hand.^  But  where  there  is  an 
omission  to  leave  the  notice- with  any  one,  the  reason  for 
such  omission  should  probably  be  given.^ 

§  865.  At  Business  Place,  Must  be  on  Proprietor. —  It 
is  not  suSicient  to  constitute  the  counting-room,  office  or. 
shop,  the  place  of  business  of  the  party  to  be  charged  with 
notice,  that  he  regularly  transacts  business  there.  It  must 
be  /lis  place  of  business,  in  the  sense  that  he  has  a  proprie- 
tary interest  in  the  subject  of  the  transactions,  or  in  the 
proceeds  of  the  business  there  conducted.  IS'otice  left  at  a 
business   house  for  one   of  its   clerks  or  other  employees 

1  Phillips  V.  Alderson,  5  Humph.  (Term.),  403. 
-  Commercial  Bank  v.  Gove,  13  La.,  113. 
*  Davenport  v.  Gilbert,  supra,  §  861. 


MANNER    AND   MODE.  4Y3 

would  not  bind  him  unless  it  came  to  his  own  hands  in  due 
time.^ 

§  866.  Office  of  Directors  of  Corporation. —  It  has  also 
been  held  that  the  president  of  a  private  corporation  could 
not  be  notified  constructively  by  leaving-  notice  of  the  dis- 
honor of  commercial  paper  drawn  or  indorsed  by  him,  at 
the  office  of  the  board  of  directors  over  which  he  presided, 
unless  there  was  some  special  authority  to  serve  the  notice 
in  that  manner.^ 

§  867.  Case  Distiiiguislied  from  Above. —  This  case  is 
to  be  distinguished  from  that  of  Berridge  v.  Fitzgerald.'' 
The  latter  was  where  the  indorser  of  a  bill  was  one  of  the 
directors  of  a  corporation.  He  had  no  other  place  of  busi- 
ness and  was  engaged  in  no  other  occupation  tlian  that  of 
director.  He  was  at  the  company's  office  when  lie  indorsed 
the  bill,  which  was  regular  business  paper,  and  had  been 
accepted  by  the  company.  When  the  instrument  was  dis- 
honored, the  affairs  of  the  corporation  were  being  wound 
up,  and  the  holder  did  not  know  where  the  indorser  resided. 
Accordingly,  he  sent  the  notice  to  him  at  the  company's 
office,  and  such  service  was  held  sufficient,  though  it  was 
never  actually  delivered  into  the  hands  of  the  one  for  whom 
it  was  intended. 

§  868.  Difference  in  Time  at  Residence  or  Bnsiness 
Place. —  It  is  also  well  to  bear  in  mind,  in  this  connection, 
that  there  is  a  difference  between  the  methods  of  serving 
notice  at  the  residence  of  the  party  and  at  his  place  of  busi- 
ness. In  the  former  it  is  sufficient  if  the  notice  is  delivered 
at  any  time  previous  to  the  hour  of  retiring  for  the  family, 
while  in  the  latter  it  should  be  delivered  during  the  ordinary 
business  hours  of  the  day.^ 

§  869.  By  Mail  Between  Residents  of  Same  Place.— 
But  the  rule  requiring  personal  notice,  or  by  leaving  it  at 

1  Bank  of  West  Tennessee  v.  Davis,  5  Heisk.  (Term.),  436. 

2  Commercial  Bank  v.  Strong,  28  Vt.,  316. 
34  Q.  B.,  639. 

*  Ante,  III,  §§  788,  789. 


474  NOTICE    OF   DISHONOR   OF   COMMERCIAL   PAPER, 

the  place  of  business  or  the  residence  of  the  party  notified, 
where  the  parties  are  residents  of  the  same  place,  is  by  no 
means  universal.  Although  it  is  still  maintained  in  many 
of  the  states  of  the  Union,  in  many  others  and  in  England 
it  has  been  materially  modified.  One  of  the  reasons  assigned 
for  the  inhibition  of  the  post  as  a  means  of  communication 
between  residents  of  the  same  place  was,  that  as  there  was 
no  postage  charged  \x\wn  drop  letters,  the  government  did 
not  assume  the  same  degree  of  care  of  mail  matter  of  this 
sort  as  of  letters  transmitted  through  the  mails  for  compen- 
sation. This  reason  is  hardly  satisfactory.  Probably  the 
better  one  is,  that  where  the  notice  is  deposited  in  the  post- 
office,  its  receipt  in  time  depending  upon  the  promptness 
with  which  the  drawer  or  indorser  calls  for  the  letter,  is 
much  less  certain  than  sending  it  directly  to  the  residence 
or  place  of  business  of  the  l^arty,  or  delivering  it  to  him  in 
person  on  the  da}"  following  the  date  of  non-payment.  "What- 
ever may  have  been  the  influence  of  either  or  both  of  these 
causes  in  bringing  about  the  original  adoption  of  the  rule, 
the  changes  wrought  in  our  postal  system,  particularly 
within  a  few  years  past,  have  entirely  disposed  of  the  one, 
and  greatly  modified  and  limited  the  effect  of  the  others. 
§  870.  Letter  Carriers. —  Since  the  adoption  of  the  free 
deliveiy  system,  by  which  mail  matter  is  delivered  by  letter 
carriers  in  all  the  large  cities  and  towns  of  this  country,  the 
change  has  suggested  an  entire  abrogation,  in  those  places 
where  carriers  are  emplo^^ed,  of  the  rule  that  obtained  under 
the  old  sj^stem,  and  the  adoption  of  the  more  convenient  rule, 
that  even  as  belAveen  residents  of  the  same  place,  where 
letter  carriers  are  regularly  employed,  it  shall  be  sufficient 
proof  of  service  to  show  that  the  notice  was  inclosed  in  a 
letter  duly  stamped,  and  addressed  to  the  drawer  or  indorser 
at  his  residence  or  place  of  business,  and  deposited  in  the 
postoffice  in  time  for  regular  delivery  on  the  day  the  party 
would  be  entitled  to  personal  notice.^ 

1  Shoemaker  v.  Mechanics'  Bank,  59  Pa.  St.,  79;  "Walters  v.  Brown,  1.1 
Md.,  393. 


MANNER   AND   MODE.  475 

§  871.  Drop  Letters  Required  to  be  Stamped.— In  the 

case  of  McNatt  v.  Jones,^  the  fact  that,  by  the  law  of  con- 
gress, letters  deposited  for  local  distribution  are  required  to 
be  stamped,  is  regarded  as  suiRcient  to  justify  an  abandon- 
ment of  the  rule  requiring  personal  notice  in  places  of  the 
magnitude  and  importance  of  Augusta,  Georgia. 

§  873.  Penny  Post. —  For  purposes  of  giving  notice  of 
the  dishonor  of  negotiable  instruments,  the  penny  post  has 
for  some  time  been  regarded  as  a  proper  and  legal  means  of 
communication  in  the  city  of  London  and  other  large  cities 
in  Great  Britain.^ 

§  873.  Baltimore  and  Other  Large  Cities. —  It  was  also 
decided  in  the  case  of  "Walters  v.  Brown,^  that  in  large  cities, 
like  Baltimore,  where  letter  carriers  were  emplo3'ed,  and  the 
parties  entitled  to  notice  were  accustomed  to  receive  letters 
from  such  carriers,  the  rule  requiring  personal  notice  did 
not  apply.  It  was  held,  in  that  case,  that  a  notice  regularly 
posted  in  time  for  delivery  in  the  ordinary  course  of  mail, 
and  properly  addressed  to  the  party,  would  as  effectually 
charge  him  with  notice  of  the  demand  and  non-pa3'ment  of 
the  paper  upon  which  he  was  liable  as  though  such  notice 
had  been  personally  served  or  left  at  his  business  place. 
Other  cases  have  recognized  the  penny  post,  or  the  postal 
delivery  system,  as  absolving  the  holder  from  the  duty  of 
employing  a  special  messenger,  in  order  to  render  the  re- 
ceipt of  the  notice  certain  between  residents  of  the  same 
place.'* 

§874.  EstaMislied  Custom  of  Bank. —  And  even  where 
the  carriers  are  not  emploj^ed,  resident  parties  may  be  noti- 
fied by  means  of  a  letter  deposited  in  the  postoffice,  and 
the  fact  that  such  notice  was  so  deposited,  properly  ad- 
dressed, will  be  suiScient  to  charge  the  party  with  notice, 

•53  Ga.,  473. 

2  3  Daniel  on  Negot.  Inst.,  §  1010. 

3  15Md.,  285. 

*  Brindley  v.  Barr,  3  Harrington  (Del.),  419 ;  Bell  v.  Hagerstown  Bank, 
7  Gill,  216. 


476  NOTICE   OF   DISnONOK   OF   COMMERCIAL   TAPEK. 

whether  he  receives  it  or  not,  when  such  mode  of  service  is 
in  accordance  with  an  established  custom  of  the  bank,  of 
which  custom  the  party  notified  was  cognizant.^ 

§  875.  May  be  Sent  l)y  Tost  When  Authorized  by  In- 
dorser. —  So  when  the  indorser  has  expressly  authorized 
any  one  in  whose  hands  the  note  may  be  when  dishonored, 
to  send  the  notice  by  post,  though  a  resident  of  the  same 
place,  the  notice  may  be  served  in  that  manner  with  the 
same  effect  as  when  the  parties  reside  at  a  distance  from 
each  other.  But  such  words  as  "  Third  indorser,  J.  P.  H., 
hves  at  Yicksburg,"  written  upon  the  instrument,  were  held 
not  to  amount  to  an  agreement  on  the  part  of  J.  P.  II.  to 
receive  notice  of  dishonor  through  the  Yicksburg  postoffice, 
when  that  was  the  place  where  payment  was  refused  by  the 
maker,  and  also  the  place  of  residence  of  the  party  senchng 
the  notice.- 

§  876.  Parties  Living  Near  Place  of  Dishonor. —  Gen- 
erally where  the  party  to  a  bill  or  note,  whose  habihty  is 
sought  to  be  fixed  by  notice,  lives  in  the  neighborhood  of 
the  city  or  village  where  the  instrument  is  made  payable, 
and  it  is  presented,  and  acceptance  or  payment  refused,  he 
may  be  notified  by  a  drop-letter,  deposited  in  the  postofiice 
where  the  instrument  is  dishonored,  it  being  the  nearest 
office  to  the  party  notified,  or  the  one  at  which  he  Usually 
receives  his  letters.^ 

§  87 7.  Illustration  of  Same. —  So,  where  the  holder  of  a 
note  resided  in  Georgetown,  District  of  Columbia,  and  the 
indorser  Uved  in  the  country,  with  his  nearest  postoffice,  and 
the  one  at  which  he  usually  received  his  letters,  at  George- 
town, the  note  being  presented  for  payment  in  that  city,  and 
payment  refused,  a  notice  of  such  non-payment,  inclosed  in 
a  letter  and  addressed  to  the  indorser  at  Georgetown,  was 

iLime  Rock  Bank  v.  Hewett.  53  Me.,  51. 

2  Bowling  V.  Han-ison,  6  How.  (U.  S.),  248. 

SBondurant  v.  Everett,  1  Mete.  (Ky.),  658;  Barret  v.  Evans,  28  Mo., 
331;  Bell  v.  State  Bank,  7  Blackf.,  456;  Jones  v.  Lewis,  8  Watts  & 
Serg,,  14, 


MANNER   AND    MODE.  477 

held  sufficiently  served,  because,  to  have  compelled  the 
holder  to  incur  the  expense  of  the  employment  of  a  private 
messenger,  under  the  circumstances,  would  have  been  un- 
reasonable.^ 

§878.  Partners — One  Resident,  One  Non-resident.— 
An  exceptional  case,  where  the  manner  of  notifying  country 
indorsers  is  fully  approved,  is  that  of  Hume  v.  Watt.-  In 
this  case  there  was  an  indorsement  by  two  partners,  one  of 
whom  lived  in  the  country,  in  the  vicinity  of  the  city  where 
the  note  was  dishonored,  and  received  all  his  mail  matter 
at  the  city  postoffice ;  while  his  co-indorser  was  a  resident  of 
the  city,  and,  as  such,  entitled  to  personal  notice.  As  it  was 
partnership  paper,  notice  properly  served  upon  either  was 
sufficient  to  bind  both.  The  only  service  made  was  upon 
the  one  who  resided  in  the  country,  and  that  by  a  drop- 
letter  deposited  in  the  postoffice  of  the  place  of  dishonor. 
The  notice  was  held  insufficient,  for  the  reason  that  it  should 
have  been  personally  served  upon  the  indorser  who  resided 
in  the  city.* 

§  8  7  9.  Case  Requiring  Personal  Notice  to  Country  In- 
dorser.—  The  recognition  of  the  sufficiency  of  notice  by 
means  of  drop-letters,  to  those  who  reside  near  the  place  of 
dishonor,  and  receive  their  letters  at  that  postoffice,  is  so 
general  as  to  be  almost  universal.  But  it  has  been  held 
that  the  postoffice  is  not  only  not  the  proper  place  to  de- 
posit notice,  when  the  indorser  resides  in  the  same  town 
with  the  party  giving  the  notice,  but  that  it  is  equally  ob- 
jectionable when  the  indorser  lives  close  to  the  border  of 
the  town  where  the  letter  containing  the  notice  is  posted.* 

§  880.  Indorser  Three  Miles  Distant. —  The  residence 
of  the  indorser  being  indicated  as  "  close  to  the  border  "  of 

IBank  of  Columbia  v.  La^v^ence,  1  Pet.,  578. 

2  5  Kan.,  34. 

3  The  principal  reason  assigned  by  the  court  for  thus  holding  was  that 
there  was  not  a  proper  degree  of  diligence  shown  in  making  inquiry  for 
the  resident  indorser. 

^McCrummen  v.  McCrummen,  5  Martin  (La.),  N.  S.,  158;  Laporte  r. 
Landry,  id.,  359. 


478  NOTICE    OF   DISHONOR   OF    COMMERCIAL   PAPER. 

the  town,  it  might  be  inferred  that  personal  notice  was 
insisted  u]ion  because  the  indorser  was  substantially  a  resi- 
dent of  the  town  —  only  separated  therefrom  by  an  imagi- 
nary line.  But  a  subsequent  case,  by  the  same  court,'  is 
calculated  to  correct  any  such  impression.  In  that  case  the 
indorser  resided  two  or  three  miles  from  the  town  where 
the  letter  was  posted,  and  where  he  generally  received  his 
mail  matter,  but  it  was  held  that  notice  deposited  in  sucli 
postoffice  was  not  properly  served,  but  should  have  been 
dehvered  to  him  by  a  private  messenger. 

§  881.  Party  Kesident  at  a  Great  Distance  from  Post- 
office. —  The  mere  fact  that  the  party  to  be  notified  resides 
in  the  country  does  not  always  justify  the  employment  of 
the  mail  as  a  means  of  communicating  the  fact  of  dishonor. 
He  may  reside  so  far  beyond  the  limits  of  the  city  or  vil- 
lage as  to  be  inaccessible  by  that  means.  As  where  a  party 
resides  thirty  or  forty  miles  distant  from  any  postoffice.  In 
such  a  case,  it  was  held  that  the  notice  must  be  delivered  to 
him  in  the  same  manner  as  though  he  resided  w^ithin  the 
limits  of  the  place  where  the  note  was  payable.^  And  that 
the  holder  should  commence  exercising  diligence  in  reach- 
ing the  indorser  on  the  day  following  that  upon  which  tlie 
note  was  dislionored,  and  continue,  without  unnecessary 
intermission,  until  the  party  was  notified, 

§  882.  Parties  Residing  Near  Different  Post  Towns. — 
Where  the  party  sending  the  notice  and  the  one  to  be  noti- 
fied resided  at  a  distance  from  each  other  —  in  or  near  dif- 
ferent cities,  towns  or  villages, —  notice  by  the  post  is  not 
only  sufficient,  but  it  is,  as  a  general  rule,  the  safest  and  best 
means  of  notification  which  can  be  adopted.  And  where  it 
is  proved  that  the  holder,  or  party  giving  the  notice,  has 
deposited  a  letter  containing  the  same  in  the  postoffice, 
properly  addressed,  that  is  sufficient  to  charge  the  party 
notified,  though  the  letter  never  should  come  to  hand.^ 

1  Louisiana  State  Bank  v.  Rowel,  6  Martin  (La.),  N.  S.,  506. 
2 Fish  V.  Jackman,  19  Me.,  467. 

3 Lindenberger  v.  Beall,  6  Wheat.,  104;  Miinn  v.  Baldwin,  6  Mass., 
816;  Shed  v.  Brett,  1  Pick.,  401. 


MANNER   AND   MODE.  479 

§  883.  Office  to  Which  Party  Usually  Resorts.—  Gener- 
ally the  notice  should  be  sent  to  the  postoffice  nearest  to 
the  party  notified,  bat  this  is  not  an  inflexible  rule.  The 
object  of  the  law  being  to  communicate  the  knowledge 
within  a  reasonable  time,  that  the  instrument  has  been  dis- 
honored, it  will  be  sufiicientif  the  notice  is  sent  to  the  office 
to  which  the  party  usually  resorts  for  his  letters.' 

§  884.  (xeneral  Adoption  of  Service  by  Mail. —  No  little 
controversy  has  arisen,  and  some  contrariety  of  opinion  has 
been  expressed  by  the  courts,  in  construing  the  requirements 
of  the  law  in  regard  to  the  postoffice  to  which  the  notice  of 
dishonor  should  be  sent  in  cases  pointed  out  by  precedent 
as  proper  ones  for  service  by  that  mode.  AVhere,  however, 
it  could  be  ascertained  that  there  was  a  postoffice  reason- 
ably near  the  residence  of  the  party  notified,  at  which  he 
was  accustomed  to  receive  his  letters,  the  cases  have  been 
rare  indeed  where  it  was  held  that  any  other  mode  of  service 
than  that  by  mail  should  have  been  employed. 

§  885.  Exceptional  Case. —  However,  the  case  of  Kash- 
ville  Bank  v.  Bennett-  seems  to  ignore  the  rule  followed 
elsewhere,  and  to  set  up  a  standard,  to  attempt  to  follow 
which  would  lead  to  endless  confusion.  The  defendant  was 
indorser  of  a  note  payable  at  a  bank  in  Murfreesboro. 
Payment  being  refused  at  maturity,  notice  of  protest  was 
placed  in  the  postoffice,  addressed  to  the  indorser,  and 
directed  to  Jefferson  in  the  same  county,  where  a  postoffice 
was  kept,  and  about  two  and  a  half  or  three  miles  from 
which  the  indorser  resided.  His  residence  was  eleven  miles 
from  the  place  of  dishonor,  and  Jefferson  was  his  nearest 
postoffice.  There  was  no  evidence  showing  whether  or  not 
he  was  in  the  habit  of  receiving  his  letters  there.  The 
court,  however,  seemed  to  take  judicial  notice  of  the  fact 

1  Tims  V.  Delisle,  5  Blackf.,  447;  Reid  v.  Payne,  16  Johns.,  218;  Remer 
V.  Downer,  23  Wend.,  620;  Bank  of  Geneva  v.  Hewlett,  4  Wend.,  323; 
Hazleton  Coal  Co.  v.  Ryerson,  20  N.  J.  L.,  129;  Bank  of  Columbia  v.  Law- 
rence, 1  Pet.,  578. 

21  Yerg.  (Tenn.),  166. 


4:80  NOTICE   OF   DISHONOR   OF   COMMEECIAL   PAPER. 

that  Murfreesboro  was  a  more  important  trading  point 
than  Jefferson,  and  so  held  that  the  notice  was  not  well 
served,  bnt  should  have  been  delivered  to  defendant  in  per- 
son, or  left  at  his  domicile  or  place  of  business,  and 
even  seemed  to  intimate  that  it  would  have  been  better  to 
have  directed  the  letter  to  the  indorser  at  Murfreesboro. 
The  reasons  assigned  for  deciding  the  case  in  this  manner 
were  that  "  the  means  or  mode  adopted  of  giving  the  notice, 
was  not  the  best  reasonably  within  the  power  of  the  party 
giving  it;  but  a  mode  circuitous,  doubtful  in  effect,  and 
overlooking  without  necessity  the  best  kind  of  service,  to 
wit,  personal  service."  ^ 

§  886.  Necessity  of  a  Rule.— It  would  be  rather  a  ca- 
pricious rule  to  require  a  holder  of  commercial  paper,  in  every 
instance,  to  choose  what  was  absolutely  the  best  mode  of 
serving  a  notice  of  dishonor.  It  would  be  unjust  to  compel 
him  to  exercise  his  independent  judgment  in  selecting  one 
of  several  modes,  and  then  make  no  allowance  for  his  good 
faith  in  case  his  judgment  should  prove  erroneous.  It  would 
surround  transactions  in  negotiable  instruments  with  such 
hazards  as  few  would  be  willing  to  assume,  to  impose  upon 
an  innocent  indorsee  in  whose  hands  the  instrument  hap- 
pened to  be  when  payment  was  refused,  not  only  the  duties 
of  good  faith  and  diligence  in  notifying  the  indorser  upon 
whom  he  relied,  but  to  require  him,  at  his  peril,  to  exercise 
the  dangerous  discretion  of  electing  which  mode  of  notifica- 
tion he  would  adopt,  and  then  hold  that  discretion  subject 
to  review  by  a  court,  hampered  by  no  fixed  rule  of  pref- 
erence for  one  mode  o2  giving  notice  over  another.  To 
hold  simply  that  the  best  mode  "  reasonably  within  the 
power  of  the  party  giving  it "  must  be  adopted  is  to  abandon 
all  rules  by  which  the  best  mode  may  be  determined,  and 
leave  it  entirely  at  the  discretion  of  the  giver  of  the  notice . 
The  logical  coroUary  of  such  a  deduction  would  be  that  thij 

1  In  considering  the  above  decision  one  cannot  avoid  the  conclusion 
that  there  must  have  been  in  possession  of  the  court,  a  knowledge  of 
some  facts  that  could  not  properly  appear  in  the  evidence. 


MANNER   AND   MODE.  481 

discretion,  once  exercised,  could  only  be  impeached  for  mala 
fides. 

§887.  Different  Offices  in  Same  Town.— One  of  the 
features  of  what  may  be  regarded  as  the  rule  by  which 
parties  giving  these  notices  are  governed  is  fairly  illustrated 
by  the  case  of  Eoberts  v.  Taft.^  There  the  notice  was 
seasonably  sent  by  mail  to  the  indorser,  directed  to  T.,  the 
principal  postoffice  of  the  town  in  which  he  lived.  But  the 
indorser  resided,  and  usually  received  his  letters  at.  West  T., 
another  postoffice  in  the  same  town.  The  holder,  by  whom 
the  letter  containing  the  notice  was  sent,  knew  where  the 
indorser  Hved,  and  also  knew  that  there  was  a  postoffice  at 
West  T.  Under  these  circumstances  it  was  very  justly  held 
that  by  the  delay  the  indorser  was  discharged  from  liability. 

§  888.  General  Direction  to  Town  Prima  Facie  Suf- 
ficient.—  But  where  there  are  two  postofflces  in  the  same 
town  it  is  not  always  necessary  to  direct  the  letter  contain- 
ing the  notice  to  one  in  particular.  A  general  direction  to 
the  town  is  prima  facie  sufficient,  and  will  serve  to  charge 
the  party  notified,  unless  he  is  accustomed  to  receive  his 
letters  at  a  particular  office,  of  which  the  sender  of  the  notice 
was  aware,  or  might  have  learned  upon  reasonable  inquiry.- 

§881).  Private  Messenger. —  Though  the  usual,  and  in 
general  the  preferable,  mode  of  notifying  antecedent  parties 
to  a  bill  or  note,  of  the  dishonor  of  the  instrument,  where 
such  parties  reside  elsewhere  than  in  the  city  or  village  in 
which  payment  is  refused,  is  by  mail,  yet  there  is  no  im- 
perative rule  requiring  the  adoption  of  that  mode.  A 
private  messenger  may  be  sent  with  the  message,  provided 
the  employment  of  this  means  involves  no  material  delay, 
and,  even  where  the  notice  arrives  a  little  later  in  the  same 
day  than  it  would  by  post,  it  may  still  be  sufficient.  As 
where  the  first  indorser  resided  in  Liverpool,  and  a  subse- 
quent indorser  in  Manchester,  the  bill  being  dishonored, 
notice  thereof  was  duly  received  by  the  subsequent  indorser 

1130  Mass.,  169. 

2  Morton  v.  Westcott,  8  Cush.,  425. 
81 


482  KOTICE    OF    DISHO>'OK    OF    COMMERCIAL   PAPEE. 

on  the  2-itli,  and  on  the  same  day  was  sent  by  a  special 
messenger  to  the  Liverpool  agent  of  such  subsequent  in- 
dorser.  It  arrived  at  Liverpool  on  the  25th.  The  ordinary 
business  hours  for  merchants  were  as  late  as  8  or  0  o'clock 
in  the  evening,  and  the  agent  of  the  Manchester  party  called 
upon  the  Liverpool  indorser  about  0  o'clock,  P.  M.,  of  the 
day  on  which  he  received  the  notice,  but  found  no  one  at 
his  countin<x-house  with  whom  the  notice  could  be  left. 
The  26th  was  Sunday,  and  the  first  indoi'ser  did  not  actually 
receive  notice  until  the  27th.  This  was  held  sufficient  to 
charge  him,  because  the  subsequent  indorser  had  used  due 
diligence,  and  was  not  required  to  lay  aside  all  other  busi- 
ness in  order  to  notify  the  antecedent  party  at  the  earliest 
possible  hour  of  the  day ;  but  he  had  done  all  that  was  in- 
cumbent upon  him  by  sending  the  notice  so  that  it  arrived 
on  the  day  following  that  upon  Avhich  payment  was  refused 
in  time  for  delivery  during  business  hours.^ 

§  890.  Addressed  to  Residence  or  Business  Place  When 
Known. —  But  the  service  of  notice  by  mail  is,  as  we  have 
seen,  much  the  better  for  the  party  giving  it,  both  as  to 
safety  and  convenience,  where  the  parties  reside  apart  at 
such  a  distance  as  to  authorize  notification  through  the  post; 
yet,  in  sending  a  communication  of  this  kind,  care  should 
be  taken  to  direct  to  the  party  to  be  notified  at  his  place  of 
residence  or  business,  if  either  be  known,  or  to  the  postoffice 
nearest  such  residence  or  place  of  business.  It  will  not  suf- 
fice that  it  is  sent  to  the  office  where  the  party  may  be 
found,  unless  it  comes  promptly  to  hand  or  is  sent  to  the 
place  designated  in  the  bill  or  note.- 

§891.  Must  be  Addressed  to  Place  of  Business. —  So 
where  a  note  was  made  in  Cincinnati,  payable  generally,  and 
the  indorser  resided  in  Indiana,  but  when  the  note  matm*ed 
was  in  the  city  of  Washington,  D.  C,  notice  sent  by  the 
post  to  him  at  the  latter  place  was  held  not  well  served.* 

1  Bancroft  v.  HaU,  1  Holt  (N.  P.),  476. 
-  Stoiy  on  Prom.  Notes,  §  343  et  seq. 
3  Burrows  v.  Hannegan,  1  McL.,  309. 


MAXNEE   AND   MODE,  483 

§  892.  Indorser  May  be  Notified  at  Place  He  Pretended 
to  Reside. —  But  when  the  indorser  holds  himself  out  to  the 
world  as  resident  at  a  particular  place,  in  case  of  dishonor 
of  the  instrument  indorsed  by  him,  and  notice  is  regularly 
sent  to  such  pretended  place  of  residence,  he  will  he  estopped 
to  deny  that  it  is  his  true  place  of  abode,  though  he,  in  fact, 
resides  elsewhere,  and  the  party  giving  the  notice  has  made 
no  particular  inquiry  in  order  to  learn  Avhether  he  lived  at 
the  place  to  which  the  notice  was  directed  or  not.' 

§  893.  Exception  to  Cases  Where  Mail  Most  Convenient 
Mode. —  A  very  obvious  exception  to  the  cases  where  notice 
must  be  sent  bv  mail  to  the  place  of  residence  of  the  party 
to  be  notified,  or  even  where  such  would  be  the  most  pru- 
dent or  expeditious  mode,  would  be  where,  at  the  time  the 
'  paper  goes  to  protest,  circumstances  have  rendered  personal 
notice  quite  as  convenient  as  notice  by  mail.  As  in  the  case 
of  Miles  V.  Hall,-  where  the  indorser  was  temporarily  at  the 
place  of  payment,  lying  ill  at  the  house  of  the  notary  who 
undertook  to  serve  the  notice.  It  would  have  been  suffi- 
cient to  charge  him  with  notice,  to  have  communicated  the 
facts  b}''  means  of  a  letter  directed  to  him  at  his  residence ; 
but  the  notar}'  undertook  to  serve  the  notice  personally, 
which  he  did  b}^  entering  the  sick  room  of  his  guest,  and 
while  there  informed  him  of  the  contents  of  the  A\T:*itten 
notice,  which  he  placed  upon  the  mantel-piece.  The  court 
held  that  the  notary  proceeded  properly  in  giving  personal 
notice,  which  was  always  the  best,  and  in  this  instance  was 
given  in  the  most  effectual  mode  practicable  under  the  cir- 
cumstances. 

§  894.  When  Holder  May  Choose  Between  Places.— In 
those  cases  that  seem  to  be  the  best  considered,  the  most 
consistent  with  each  other,  and  in  harmony  with  the  doc- 
trines of  the  law  merchant,  the  giver  of  the  notice  is  not 
required  to  discriminate  with  nicety  between  places,  when 
there  are  several  which  seem  to  be  equally  available.    As 

1  Lewiston  Falls  Bank  v.  Leonard,  43  Me.,  144. 
■-'12Sm.  &  Marsh.,  332. 


484  NOTICE  or  dishonor  of  commercial  paper. 

when  the  part}^  to  be  notified  resides  in  two  or  more  places 
alternately ;  or  when  he  resides  in  the  country,  and  receives 
his  letters  from  two  different  offices,  without  seeming  to 
give  a  decided  preference  to  either ;  or  when  he  resides  n-ear 
one  postoffice  and  carries  on  business  in  the  neighborhood 
of.  another,  receiving  his  mail  matter  sometimes  at  the 
former  and  at  other  times  at  the  latter.^ 

§  895.  Illustration  of  Above. —  In  one  case,  where  the 
party  resided  and  carried  on  business  in  separate  places,  at 
each  of  which  there  was  a  postoffice,  and  he  had  a  box  at 
the  one  in  the  village  where  he  carried  on  business,  though 
he  received  occasional  letters  at  the  other,  it  was  held  that 
a  notice  sent  to  the  one  where  he  had  a  box,  and  where  he 
conducted  Ms  business,  was  properly  served.^ 

§896.  Contra. —  But  in  another  case,  it  was  decided, 
where  there  was  evidence  that  the  indorser  received  letters 
by  mail  at  two  separate  offices,  at  one  of  which  he  had  a 
box,  that  notice  was  not  properly  served  when  directed  to 
the  office  where  he  had  the  box,  because  the  other  was  near- 
est his  residence.^  Outside  of  the  jurisdiction  where  this 
case  was  decided,  the  courts  would  hardly  be  inclined  to 
adopt  it  as  an  authority,  for  the  reason  that  it  gives  undue 
importance  to  the  matter  of  distance. 

§897.  Distance  Made  the  Ooverning  Fact. —  In  still 
another  case,  by  the  same  court,  however,  the  lines  are 
drawn  with  even  greater  strictness.^  There  the  indorser  to 
whom  notice  was  sent  resided  in  the  parish  of  C,  in  which 
there  was  no  postoffice ;  so  he  received  his  letters  at  N.  and 
E.,  as  it  happened,  without  seeming  to  prefer  either.  The 
case  was  allowed  to  turn  entirely  upon  the  question  of  con- 
tiguity. The  letter  containing  the  notice  was  addressed  to 
the  indorser  at  N.,  and  the  distance  from  the  residence  of 

1  Infra,  %  895  et  seq. 

2  Montgomery  County  Bank  v.  Marsh,  7  N.  Y.,  481. 

3  Mechanics'  &  Traders'  Bank  of  New  Orleans  v.  Compton,  3  Bob. 
(La.),  4. 

4  Nicholson  v.  Marders,  3  Rob.  (La.),  242. 


MANNER   AND   MODE,  485 

the  indorser  to  IST.  and  E.  respectively  was  so  nearly  the 
same  as  to  require  the  testimony  of  witnesses  to  determine 
which  was  the  nearer  of  the  two.  So  triflins^  was  the  dif- 
ference  of  distance,  in  fact,  that  the  witnesses  called  by  the 
parties  to  settle  the  important  point  failed  to  agree  —  some 
swearing  in  favor  of  IST.,  and  others  declaring  quite  as  posi- 
tively for  R.  The  matter  being  thus  evenly  balanced,  the 
com*t  held  that  R.  was  the  postoffice  to  which  the  notice 
should  have  been  sent,  because  the  greatest  number  of  wit- 
nesses said  that  it  was  nearest  to  indorser'^s  house,  and  there- 
fore the  indorser  was  discharged  for  want  of  notice.^ 

§  898.  Criticism  of  Foregoing  —  True  Rule.—  It  is  dif- 
ficult to  determine  which  of  the  two  cases  last  cited  is  most 
at  fault.  If  the  latter  is  open  to  criticism  for  adopting  the 
most  arbitrary  and  unsatisfactory  rule  of  evidence,  in  order 
to  settle  a  question  of  no  value  in  determining  the  rights  of 
the  parties,  with  no  better  end  to  subserve  than  the  dis- 
charge of  a  party  from  a  just  obligation,  the  former,  by 
deciding  the  same  question  upon  evidence  of  a  higher  grade, 
established  the  bad  precedent.  In  deciding  the  latter  case, 
the  court  found  itself  trammeled  by  the  rule  already  de- 
clared, and  could  not  feel  justified  in  regarding  the  fact  that 
the  party  received  his  letters  from  both  offices  alike,  as  of 
any  special  significance,  when  the  precedent  case  put  the 
same  state  of  facts  aside,  because  there  was  another  ofiico 
nearer  at  hand  than  the  one  to  which  the  notice  was  sent. 
The  true  rule,  both  upon  principle  and  authority,  is  that  the 
notice  is  sufficiently  served,  in  respect  to  the  postoffice  to 
which  it  is  addressed,  if  sent  to  that  one  which  is  nearest  to 
the  residence  of  the  party  notified,  or  at  Avhich  he  ordina- 
rily receives  his  letters.  The  citation  of  these  cases,  how- 
ever, may  be  justified  upon  the  ground  that  they  illustrate 

J  To  follow  tills  case  as  a  precedent  might  seriously  embarrass  the 
holder  of  dishonored  commercial  paper.  In  exceptional  cases,  like  the 
above,  it  would  probably  be  less  expensive  to  serve  the  notice  personally 
than  it  would  be  to  ascertain  beyond  perad venture  which  one  of  two  or 
more  offices  was  nearest  the  residence  of  the  party  to  be  notified. 


486  NOTICE   OF   DISHONOK   OF   COMMERCIAL   PAPER. 

the  subject  here  treated,  by  showing  what  is  not  the  law. 
In  this  way,  if  no  other,  they  may  become  usefuL 

§  899.  To  Principal  Office  of  Parish.— But  where  the 
notice  was  addressed  to  an  indorser  at  the  principal  post- 
office  of  the  parish  in  which  he  had  his  residence,  it  was 
held  prima  facie  sufficient,  and  cast  upon  such  indorser  the 
burthen  of  showing  in  defense  that  there  w^as  another  post- 
office  nearer  to  his  residence.^ 

§  900.  To  County  Seat. —  So  it  was  held  when  the  notice 
was  directed  to  the  county  seat  of  the  county  in  which  the 
party  resided,  designating  the  particular  locality  in  the 
county,  that  it  was  properly  sent,  though  the  county  seat 
was  nine  miles  from  the  residence  of  the  indorser,  and  there 
was  another  office  within  half  a  mile  of  his  house.^ 

§  901.  To  Principal  Office  of  Town. —  So,  also,  has  it 
been  decided,  that  though  there  were  several  postoffices  in 
the  town  in  Avhich  the  indorser  had  his  residence,  a  letter 
containing  the  notice  addressed  to  the  town  postoffice  was 
sufficient,  notwithstanding  one  of  the  other  offices  was 
nearer  his  residence.^  This  case  seems  to  go  to  the  very  ex- 
treme of  liberal  construction  in  order  to  preserve  the  liabil- 
ity of  indorsers  of  commercial  paper.  It  is  maintained  that 
the  holder  residing  in  a  different  towm  is  not  supposed  to  be 
able  to  learn  at  which  of  several  postoffices  the  indorser  re- 
ceives his  mail,  so  he  is  not  required  to  inquire  further  than 
for  the  town  at  which  tlie  indorser  resides.'* 

§  902.  Should  be  Inquiry  Made. —  The  case  cited  above 
declares  the  doctrine  more  broadly  than  will  be  sustained 
by  the  weight  of  authority.  In  many  instances,  no  doubt, 
notice  sent  to  a  drawer  or  indoreer,  directed  to  the  town 
Avhere  he  resided,  would  be  sufficient,  even  though  there 
are  other  offices  in  the  same  to^vn ;  but  the  holder  would 
not  be  justified  in  sending  such  notice  without  the  slightest 

1  Yeatman  v.  Erwin,  5  La.,  264. 

2  Weakly  v.  Bell,  9  Watts,  373. 

8  Bank  of  Maachester  v.  Slason,  13  Vt.,  334. 


MANNEE   AND   MODE.  i87 

inquiry,  and  would  certainly  not  be  protected  if  he  knew 
that  there  were  several  offices  in  the  same  town,  and  had 
cause  to  believe  that  reasonable  inquiry  would  enable  him 
to  discover  at  which  one  the  indorser  would  be  most  likely 
to  receive  a  communication  by  mail.  It  is  true  that  notice 
directed  to  the  town,  generally,  \^  prima  facie  sufficient,  but 
its  sufficiency  may  be  rebutted  by  proof  that  the  indorser 
received  his  letters  at  one  office  iii  particular,  and  that  the 
holder  might  have  ascertained  this  fact  by  proper 'inquiry.' 

§  903.  Proper  Inquiry  for  Residence  in  Another  Town. 
So,  in  one  case,  the  notar}^  who  had  protested  the  note  in- 
quired of  the  cashier  of  the  bank  by  Avhich  he  was  employed 
for  the  residence  of  the  indorser,  and  was  told  that  it  was  H. 
This  was  a  town  in  which  there  were  two  postoffices,  one  of 
which  was  situated  at  ]S"orth  H.,  about  three  miles  nearer 
the  residence  of  the  indorser  than  the  other,  and  was  the 
office  at  which  he  usually  received  his  letters.  The  notary 
was  not  aware  of  these  facts,  nor  that  there  were  two  post- 
offices  in  the  town  of  11.,  but  sent  the  letter  containing  the 
notice  directed  to  the  town,  generally,  and  the  court  held 
this  sufficiently  served  to  bind  the  indorser.^ 

§  904.  Sufficient  Inquiry  Question  for  Jury. —  It  has 
been  decided,  where  the  notice  was  addressed  to  the  town 
generally,  and  there  were  several  postoffices  in  the  town, 
that  it  was  a  question  for  the  jury  whether  sufficient  care 
was  exercised  in  forwarding  the  notice,  to  render  it  effective 
and  binding  upon  the  party  notified.'  Between  inhabitants 
of  the  same  town,  but  different  villages,  as  we  have  already 
seen,^  the  notice  may  be  sent  by  mail.' 

§  905.  Transient  Indorser.—  When  the  indorser  resides 
alternately  at  two  places,  going  from  one  to  the   other, 

1  Morton  V.  Westcott,  8  Cush.,  425;  Downer  v.  Remer,  21  "Wend.,  10; 
Roberts  v.  Taft,  120  Mass.,  169. 

2  Cabot  Bank  v.  Eussell,  4  Gray,  167. 

3  Downer  v.  Remer,  21  Wend.,  10. 
*  Supra,  g  850. 

5  Ransom  v.  Mack,  2  Hill,  587. 


488  NOTICE   OF   DISHONOE   OF    COMMERCIAL   PAPER. 

notice  directed  to  him  at  either,  Avill,  in  general,  be  suffi- 
cient.' So,  when  the  indorser  had  no  fixed  place  of  resi- 
dence, and  the  bill  was  dated  at  a  hotel,  proof  that  the 
notice  ^vas  sent  to  such  hotel,  and  received  by  the  indorser's 
wife,  was  held  sufficient.' 

§  906.  Temporary  Abode  Not  Residence. —  But  the  fact 
that  a  party  to  a  bill  or  note  resides  a  portion  of  the  year 
at  a  particular  place  will  not  constitute  that  his  place  of 
residence,  so  as  to  render  him  chargeable  w4th  notice  of 
non-acceptance  or  non-payment,  when  it  is  directed  to  him 
at  the  postoffice  of  such  place.* 

§  907.  Member  of  Congress. —  And  the  mere  fact  that 
the  indorser  is  known  to  be  a  member  of  congress  is  not 
sufficient  to  warrant  sending  notice  through  the  mail  ad- 
dressed to  him  at  Washington,  D.  C, —  especially  when 
he  is  known  to  have  a  residence  in  the  state  he  represents; 
though,  if  he  have  no  fixed  place  of  abode,  notice  addressed 
to  him  at  Washington  would  suffice.^  It  has  been  held, 
however,  that  notice  of  this  kind  was  not  well  served  upon 
a  member  of  congress,  even  during  the  session  of  that  body, 
by  leaving  it  inclosed  in  a  letter  addressed  to  him  in  the 
postoffice  of  the  house  of  which  he  was  a  member,  unless  it 
was  actually  received.^ 

§  908.  Last  Known  Residence,  When  Sufflcieut. —  When 
by  the  exercise  of  proper  diligence  the  holder  is  unable  to 
ascertain  the  present  residence  of  the  party  to  be  notified, 
he  may  direct  the  letter  containing  the  notice  to  hun  at  his 
last  known  place  of  abode.  In  such  case  it  may  reach  the 
party  for  whom  it  was  intended  by  being  forwarded ;  but 
whether  it  does  or  not,  the  holder  has  done  aU  that  could 
reasonably  be  expected  of  him.*^ 

lExch.  &  Banking  Co.  of  N.  O.  v.  Boyce,  3  Rob.  (La.),  307. 
2  Wharton^.  Wright,  1  Carr.  &  Kir.,  585. 
SRiinyan  v.  Montfort,  Busb.  (N.  C),  371. 

4  Walker  v.  TunstaU,  3  How.  (Miss.),  259;  TunstaU  v.  Walker,  2  Sm. 
&  Marsh.,  638. 

5  Hill  V.  Norvell,  3  McLean,  583. 

6  Wilson  V.  Senier,  14  Wis.,  380, 


MANKEE   AND    MODE.  489 

§  909.  Diligent  Inquiry  for  Unknown  Residence. —  But 

^vhen  the  residence  of  the  party  to  be  notified  is  unknown 
to  the  party  whose  duty  it  is  to  give  such  notice,  the  latter 
will  not  be  excused  merely  because  of  such  lack  of  knowl- 
edge. He  ought  to  make  diligent  inquiry  —  particularly  of 
the  other  parties  to  the  bill  when  known  to  him.  And  for 
a  failure  to  make  such  inquiries  in  a  case  where  the  only 
party  known  to  the  holder  Uved  at  a  distance  of  seventy 
miles,  the  court  held  that  the  indorser  was  discharged  be- 
cause the  holder  might  have  communicated  Avith  the  known 
party  by  letter,  and  thus  have  learned  the  place  of  residence 
of  the  indorser  sought  to  be  charged.^ 

§  910.  Inclosing  Notices  to  All,  to  Last  Indorser. — 
Where  there  are  several  indorsers  of  a  note,  or  indorsers 
and  drawer  of  a  bill,  and  the  last  indorser  only  is  known  to 
the  holder  in  whose  hands  the  instrument  is  dishonored,  it 
is  a  common  practice  to  inclose  the  notices  to  all  antecedent 
parties  in  a  letter  notif3''ing  the  last  indorser.  This,  how- 
ever, will  not  suffice  to  charge  them  with  notice,  unless  the 
inclosures  are  promptly  forwarded  to  the  several  parties  to 
the  instrument.-  In  the  case  of  Shelburne  Falls  l!^ational 
Bank  v.  Townsley,^  where  the  antecedent  party  resided  in 
the  same  place  as  the  party  to  whom  the  notice  was  sent 
inclosed,  it  was  held  that  a  drop-letter  containing  such  no- 
tice should  have  been  placed  in  the  office  on  the  same  day 
it  was  received.  And  where  the  antecedent  parties  reside 
in  another  place,  the  notices  intended  for  them  should  be 
promptly  forwarded  to  the  proper  postoffice  of  each,^ 

§  911.  Transitory  Place  of  Business. —  As  notice  left 
at  the  place  of  business  of  resident  parties  is  equall}^  as 
efficacious  as  when  left  at  the  residence,  so  is  the  same 
option  allowed  in  giving  notice  by  means  of  the  post,  where 
the  relative  situation  of  the  parties  is  not  such  as  to  require 

1  Hill  V.  Van-ell,  3  Me.,  233. 

2  Stix  V.  Mathews,  63  Mo.,  371. 
3 102  Mass.,  177. 

*  Stix  V.  Mathews,  63  Mo.,  371. 


490  NOTICE    OF   DISHONOK   OF    COMaiEKCIAL   PAPER 

I)ersonal  notice ;  but  the  mere  presence  of  the  party  in  any- 
particular  place  engaged  in  the  transaction  of  business, 
Avhen  such  business  is  transitory  and  the  party  is  only  tem- 
porarih"  located  at  the  place,  for  the  purpose  of  disposing 
of  his  property  there,  or  the  like,  will  not  constitute  that 
his  place  of  business,  so  that  he  may  be  safely  notified  by  a 
letter  addressed  to  him  there.^ 

§  912.  By  SlailWheii  Holder  and  Indorser  Are  Fellow- 
Townsmen. —  It  will  often  happen  that  the  holder  of  a  bill 
or  note,  and  his  mimediate  indorser  or  the  drawer,  may  be 
residents  of  the  same  place,  and  still  the  notice  of  dishonor 
may  be  transmitted  by  mail,  and  the  proof  of  its  having 
been  properly  addressed,  and  posted  in  due  time,  will  be 
suflBcient  to  charge  the  party  so  notified.  As  when  the 
holder  and  indorser  of  a  bill  of  exchange  were  residents  of 
Montgomery,  and  the  bill  was  drawTi  on  Mobile,  where  it 
Avas  sent  to  an  agent  of  the  holder  for  presentment,  and  on 
j)ayment  being  refused,  notice  thereof  was  sent  by  post  to 
the  indorser  at  Montgomery;  this  was  held  sufficient,  for 
the  reason  that  the  agent  sending  it  stood  in  the  place  of  the 
real  holder.^ 

§  913.  Agent  of  Holder,  to  Indorser  in  Same  Place. — 
So  has  it  been  held,  where  the  agent  for  collection  and  the 
party  to  be  notified  reside  in  the  same  place,  but  the  actual 
holder  resides  elsewhere,  that  the  notice  may  be  sent  in  this 
manner  by  the  agent  to  the  indorser,  with  the  same  effect 
as  though  they  lived  in  separate  post  towns.  The  reason 
for  this  holding  was  that  as  the  agent  might  have  given 
notice  by  mail  to  his  principal,  and  he  in  the  same  manner 
to  the  indorser,  it  would  be  requiring  an  act  useless  in  itself, 
but  one  which  would  involve  delay,  to  compel  the  agent  to 
adopt  this  circuitous  mode  of  notification.^ 


1  Walker  v.  Stetson,  14  Ohio  St.,  89. 
2 Greene  v.  Farley,  20  Ala.,  322. 

^  Gindrat  v.  Mechanics'  Bank  of  Augusta,  7  Ala. ,  324.     See,  also,  Phil- 
ipe  V.  Harberlee,  45  Ala.,  597. 


MANNER  AND   MODE.  491 

§  914.  Circuitous  Notice  l)y  Mail  Between  Residents 
of  Same  Place. —  It  is  competent  for  successive  indorsers 
to  give  notice,  after  receiving  it,  to  tlieir  own  immediate 
mdorsers,  and  so  on  to  the  last  indorser  or  drawer,  and 
when  their  immediate  indorsers  live  in  another  city  or  vil- 
lage, the  notification  may  be  by  mail.  A  modification  of 
the  rule  similar  to  that  in  the  case  last  cited,  ffrowinof  out 
of  a  series  of  indorsements  of  a  bill  of  exchange,  is  exem- 
phfied  in  the  case  of  Eagle  Bank  i\  Hathaway.'  The  bill 
was  payable  in  Philadelphia  to  the  order  of  A.,  who  resided 
in  Providence.  A.  indorsed  it  to  a  bank  in  Providence,  by 
which  bank  it  was  indorsed  and  transmitted  to  a  bank  in 
!N"ew  York  for  collection.  The  i^ew  York  bank  indorsed 
and  transmitted  it  for  collection  to  a  correspondent  in  Phil- 
adelphia, by  whom  it  was  presented,  and  not  being  paid, 
notice  was  duly  forwarded  by  mail  to  the  IS'cav  York  bank, 
inclosing  notices  to  prior  indorsers.  The  jSTew  York  bank 
forwarded  notice  in  the  same  manner  to  the  Providence 
bank,  by  whom  the  notice  to  A.  was  deposited  in  the  post- 
olfice  of  that  city,  addressed  to  him.  It  was  held  that  as 
the  notice  might  have  been  sent  to  A.  by  mail  from  Phila- 
delphia or  ]!^ew  York,  the  Providence  bank  being  merely  a 
conduit  for  the  transmission  of  notice,  and  that  if  the  in- 
dorser had  been  anticipating  notice  of  dishonor  he  would 
have  looked  for  it  through  the  postoffice,  the  notice  was 
sufficient  to  bind  him,  though  it  might  have  been  personally 
served. 

§915.  Designated  Place  of  Payment  —  Inquiry. — 
Merely  depositing  a  letter  containing  the  notice  in  the  of- 
fice, addressed  to  the  indorser,  at  the  place  Avhere  the  note 
is  made  payable,  wiU  not  suffice,  unless  the  holder  has  ex- 
hausted every  means  of  information  as  to  the  residence  of 
the  party.  Inquiry  at  the  bank  and  an  examination  of  the 
city  directory  would  not  suffice  when  inquiry  might  have 
been  made  of  other  parties  to  the  bill.- 

15  Mete,  213. 

2  Gilchrist  v.  Donnell,  53  Mo.,  591.     See,  also,  Barret  v.  Evans,  28  Mo. 
331 ;  Cbapcott  v.  Curlewis,  2  Moody  &  Rob,,  484. 


492  NOTICE   OF   DISHONOE   OF   COMMEKCIAL   PAPEE. 

§916.  Put  Upon  Inquiry. —  As  where  the  holder  had 

been  informed  that  the  indorser  hved  on  Long  Island,  that 
was  sufficient  to  put  him  upon  inquiry,  and,  in  the  absence 
of  countervailing  evidence,  sufficient  to  warrant  him  in  be- 
lieving that  such  party  lived  in  the  city  of  New  York, 
notice  sent  him  at  the  latter  place  would  not  be  sufficient,^ 

§  917.  Insufficient  Inquiry. —  It  has  been  held  that  in- 
quiry made  by  a  notary,  in  a  bar-room,  and  on  the  street, 
for  the  residence  of  a  business  man  in  a  neiofhborine:  village, 
when  he  received  no  information  in  answer  to  his  inquiries, 
would  not  warrant  him  in  sending  the  notice  to  the  place 
where  the  note  was  dated,  without  further  inquiry.- 

§  918.  Sending  Notice  to  Wliere  Instrument  Dated,  In- 
sufficient.—ISTor  is  the  mere  sending  of  the  notice  by  mail, 
directed  to  the  drawer  of  a  bill  at  the  place  where  the 
instrument  is  dated,  sufficient  to  charge  such  drawer  Avith 
notice,  in  the  absence  of  satisfactory  proof  that  it  was  re- 
ceived there  in  due  course  of  mail.^ 

§  919.  Inquiry  of  Maker,  Insufficient. —  So,  where  the 
holder  of  a  dishonored  note  made  inquiry  of  the  maker, 
and,  on  being  advised  by  him  to  send  the  notice  to  the  in- 
dorser, directed  to  him  at  C,  and  the  holder  acted  upon  the 
advice  without  further  inquiry,  though  there  was  a  post- 
office  mucli  nearer  than  C,  to  the  indorser's  residence,  it 
was  held  to  be  an  act  of  culpable  negligence  on  the  part  of 
the  holder  to  rest  content  with  the  information  obtained 
upon  such  inquiry,  and  the  indorser  was  discharged.^ 

§  920.  Acting  on  Information  from  One  of  tlie  Parties, 
Sufficient. —  But  where  the  note  was  held  by  a  bank,  and  one 
of  the  parties  thereto  gave  the  direction  to  the  cashier, 
where  letters  should  be  sent  to  reach  the  indorser,  and,  act- 
ing on  such  adA^ce,  the  cashier  sent  the  notice,  according  to 
such  direction,  to  a  town  in  which  there  were  four  post- 

^Eandall  v.  Smith,  34  Bai'b.,  452.     See  Granite  Bank  v.  Ayers,  16 
Pick.,  392. 
2  Spencer  v.  Bank  of  Salina,  3  Hill,  520. 

3Lowery  v.  Scott,  24  Wend.,  358;  Sprague  v.  Tyson,  44  Ala.,  388. 
< Davis  V.  Williams,  Peck  (Tenn.),  191;  Woods  v.  Neeld,  44  Pa.  St.,  86. 


MANNER   AND   MODE.  493 

offices,  without  addressing  the  letter  to  eitlier  in  particular, 
such  notice  was  held  sufficient,  though  the  office  bearing  the 
name  of  the  town  was  nine  miles  from  the  residence  of  the 
indorser.' 

§  931.  Inquiry  of  Drawer. —  So,  where  the  holder  ap- 
plied to  the  drawer  of  a  bill  for  information  as  to  the. 
residence  of  the  indorser,  it  was  held  that,  as  the  drawer 
was  one  in  whom  the  indorser  had  reposed  confidence,  the 
holder  had  a  right  to  expect  a  correct  answer  from  him,  in 
relation  to  the  matter  which  had  called  forth  such  expres- 
sion of  confidence,  and  might  safely  rely  upon  it  as  such.- 
And  where  the  second  indorser  was  apphed  to  under  like 
circumstances,  it  was  held  that  the  notary  giving  the  notice 
might  act  upon  the  information  thus  obtained  without  being 
chargeable  with  negligence,  though  such  information  proved 
to  be  erroneous.' 

§922.  Previously  Acquired  Knowledge. —  So  also  has 
it  been  adjudged  sufficient  diligence  where  the  holder  acted 
upon  his  own  previously  acquired  knowledge  of  the  resi- 
dence of  the  indorser,  and  directed  the  notice  accordingly, 
though  by  reason  of  a  subsequent  change  of  domicile,  of 
which  the  holder  had  no  knowledge,  the  party  so  notified 
may  have  failed  to  receive  the  letter  in  time.^ 

§923.  Former  Communications. —  Where  a  letter  con- 
taining notice  of  the  dishonor  of  negotiable  paper,  ad- 
dressed to  the  indorser  .at  the  town  of  B.  generally,  was 
received  and  responded  to  without  objection,  a  subsequent 
notice,  directed  to  him  in  the  same  manner,  by  the  same 
notary,  who  was  informed  that  he  still  lived  at  B.,  was  held 

I  CatskiU  Bank  v.  Stall,  15  Wend.,  364. 

^Bank  of  Utica  v.  Bender,  21  Wend.,  643. 

a  Ransom  v.  Mack,  2  Hill,  587;  Harris  v.  Robinson,  4  How.,  336.  See 
to  the  same  purport,  Hargen  v.  Bemis,  1  Thomp.  &  C.  (N.  Y.),  460. 

4 Bank  of  Utica  v.  Phillips,  3  Wend.,  408 ;  Bank  of  Utica  v.  Davidson, 
5  Wend.,  587;  Reid  v.  Payne,  16  Johns.,  218;  Requa  v.  Collins,  51  N.  Y., 
144  [unless  he  ought  to  have  known  of  such  change] ;  Harris  v.  Mem- 
phis  Bank,  4  Humph.,  519. 


494  NOTICE  or  dishoxoe  or  commercial  paper. 

sufficient,  though  there  were  several  postoffices  in  B.,  none 
of  which  were  of  the  same  name  as  the  town,  and  notwith- 
standing, also,  that  the  indorser  had  removed  from  the  town 
since  the  receipt  of  the  former  notice. 

§  924.  Surname  Alone  Insufficient. —  The  notice  may 
be  directed  to  the  proper  place,  and  still,  from  the  manner 
in  which  it  is  addressed,  cast  the  burden  of  proving  its  due 
receipt  by  the  party  to  be  charged,  upon  the  party  giving 
the  notice.  As  where  the  letter  is  addressed  to  the  party 
merely  by  his  surname  and  is  not  directed  to  his  residence 
or  place  of  business  by  number,  but  to  the  general  dehvery 
of  a  large  city.-  So,  where  the  notice  was  addressed  to  the 
"  estate  "  of  a  deceased  indorser,  in  the  absence  of  proof  of 
diligent  inquiry  for  the  name  of  the  executor,  this  was  held 
insufficient." 

§  925.  Belay  Chargeable  to  Indorser. —  But  where  the 
negligence  which  occasions  the  delay  is  properly  chargeable 
to  the  indorser  himself,  he  must  bear  the  consequences.  As 
where  he  writes  his  name  upon  the  instrument  so  illegibly 
as  to  mislead  one  not  perfectly  acquainted  with  his  writing, 
or  to  leave  room  for  a  doubt  as  to  the  proper  rendering  of 
his  signature,  the  party  giving  the  notice  will  be  justified 
in  relying  upon  its  appearance  and  addressing  the  notifica- 
tion accordingly.* 

§  926.  Holder  Misled  l)y  Place  of  Date.— So  where  a 
bill  was  drawn,  dated  '*  London,"  but  not  otherwise  giving 
the  address  of  the  drawer,  and  notice  of  its  dishonor  was 
addressed  to  the  drawer  in  the  same  general  way,  it  was 
held,  notwithstanding  the  drawer's  denial  of  receipt  of  no- 
tice, and  the  furthei*  fact  that  inquiry  of  the  accej)tor  would 
have  disclosed  that  he  lived  at  Chelsea,  there  was  sufficient 
evidence  of  diligence  to  go  the  jury,  and  the  court  was  of 

iSaco  National  Bank  v.  Sanborn,  63  Me.,  340. 

-Walter  v.  Haynes,  Ry.  &  Moody,  149;  Ti-ue  v.  Collins,  3  Allen,  438. 

3  Manchester  Bank  t".  Oliver,  10  Gushing,  557. 

*  Manufactm-ers'  Banku.  Hazard,  30  N.  Y.,  236. 


MA^'XER   AXD    MODE.  495 

the  opinion  that  the  notice  was  sufficient.'  So,  also,  has  a 
notice  addressed  to  the  "  legal  representatives  "  of  a  de- 
ceased party  to  a  negotiable  instrument  been  held  sufficient.- 

§  927.  Address  Should  Include  Name  of  State.— Eut  in 
addressing  a  letter  containing  a  notice  of  this  sort  to  a 
party  in  any  one  of  the  states  of  the  Union,  the  name  of 
the  state  should  always  form  a  part  of  the  direction,  as 
there  are  frequently  places  in  different  states  of  precisely 
the -same  name.^ 

§028.  When  Address  Designated  by  Indoiser.— The 
indorser  has  a  right  to  designate  with  particularity  the  ad- 
dress to  which  the  notice  shall  be  sent,  and  make  it  known 
to  all  subsequent  holders  by  writing  the  same  on  the  back 
of  the  instrument,  in  conjunction  with  his  indorsement.  And 
when  a  place  is  so  designated,  the  notice  should  be  di- 
rected there,  unless  the  party  giving  notice  is  aware  of  the 
indorser's  removal  subsequent  to  his  indorsement.'*  In  fact, 
should  the  indorser  fail  to  receive  the  notice  in  time,  by 
reason  of  its  being  sent  elsewhere  than  to  such  designated 
address,  he  will  be  discharged.^ 

§  929.  Delay  from  Sending  by  Unnsual  Route.— From 
the  language  of  the  authorities  already  cited,  as  well  as 
upon  principle,  it  would  seem  that  in  giving  the  notice 
through  the  postoffice,  it  was  not  incumbent  upon  the  per- 
son giving  it  to  select  any  particular  route,  it  being  suffi- 
cient to  post  the  letter  in  time  to  go  by  the  outgoing  mail. 
It  would  also  seem  that  where  the  giver  of  the  notice  under- 
takes to  send  it  by  an  unusual  route,  or  in  an  unusual  man- 
ner, and  its  receipt  is  thereby  delayed,  the  indorser  will  be 
discharged  fron\  liability ;  but  it  has  been  held,  when  a  notice 

1  Burmester  v.  Barron,  17  Ad.  &  Ell.  (Q.  B.),  828 ;  Mann  v.  Moors,  Ry. 
&  Mood.,  249;  Claike  v.  Sharpe,  3  Mees.  &  Wels.,  166. 

2  Pillow  V.  Hardeman,  3  Humph.  (Tenn.),  538;  Boyd  v.  Savings  Bank, 
15  Gratt.,  501. 

3  Beckwith  v.  Smith,  22  Me.,  125. 
*  Peters  v.  Hobbs,  25  Ark.,  67. 

5  Bartlett  v.  Robinson,  39  N.  Y.,  187. 


496  NOTICE   OF   DISHONOE   OF   COMMERCIAL   PAPER. 

was  sent  by  a  designated  route  and  under  cover  to  another, 
whereby  its  arrival  was  delayed  several  days  beyond  the 
time  it  would  have  corae  to  hand  under  a  general  direction, 
addressed  to  the  indorser  at  his  place  of  residence,  that  the 
notice  was  sufficient,  as  the  notary  sending  it  might  choose 
the  route,  and  was  not  bound  to  choose  the  shortest.^  This 
case  was  decided,  however,  by  a  divided  court,  the  better 
reason  being  with  the  dissenting  opinion.  The  case  is 
scarcely  entitled  to  be  followed  generally  as  an  authoritj^. 

IBank  of  Utica  v.  Smith,  18  Johns.,  230. 


WAIVEK    AND    EXCUSE.  4:97 


Y.  Waiver  and  Excuse. 

i  930,  General  Character  of  Waiver. 

931.  Division  of  Subject. 

933.  Waiver  May  be  Antecedent  or  Subsequent. 

933.  Antecedent  Waiver  in  Writing. 

934.  Eifect  of  "  Protest  Waived." 

935.  "I  Waive  Demand  of  Protest." 

936.  Waiver  of  Notice  Does  Not  Include  Presentuieut 

937.  No  Special  Form  Required. 

938.  Waiver  by  Letter. 

939.  May  be  Verbal. 

940.  May  be  Established  by  Circumstances. 

941.  Promise  to  Maker, 

943.  When  Promise  Supported  by  Consideration. 

943.  Indemnity  Does  Not  Always  Waive. 

944.  Note  for  Real  Estate,  Legal  Title  Still  in  Grantor. 

945.  Where  Waiver  Depends  on  Sufficiency  of  Indemnity. 

946.  Indemnity  Taken  for  His  Own  Security. 

947.  Illustration  of  Foregoing  Doctrine. 

948.  Indorser  with  Funds  of  Maker  Does  Not  Become  Principal 

949.  Assignment  to  Trustees  Will  Not  Excuse. 

950.  Taking  Mortgage  of  All  Maker's  Property  Held  No  Waiver. 

951.  Indemnity  Stronger  Reason  for  Notice. 

952.  Illustration. 

953.  Indorsement  of  Renewal  Note. 

954.  Request  No  Waiver  When  Not  Acceded  to. 

955.  Waiver  by  Indorser. 

956.  Conflicting  Views. 

957.  Conditions  of  Waiver  by  Subsequent  Promise. 

958.  Subsequent  Promise  Without  Knowledge. 

959.  Promise,  Express  and  Implied. 

960.  ImpUed  Promise. 

961.  Promise  to  "  See  it  Paid." 

962.  Recitals  in  Contract  Acknowledging  BiU. 

963.  Subsequent  Waiver  Must  be  Unequivocal. 

964.  Admissions  to  Strangers  Do  Not  Amount  to  Waiver. 

965.  Anxiety  to  Have  the  Bill  Paid,  Not  Waiver, 

966.  Where  Subsequent  Promise  Evidence  of  Notice. 

967.  Subsequent  Promise  a  Waiver. 

968.  Even  Written  Admission  Not  Conclusive. 

969.  Subsequent  Promise  Either  Waiver  or  Admission. 

970.  Onus  Probandi. 

971.  Subsequent  Promise  Prima  Fade  Evidence  of  Diligence. 

82 


498  NOTICE    OF    DISHONOR    OF    COMMERCIAL   PAPER. 

§  972.  Evidence  of  Knowledge  of  Laches. 

973.  Onus  Cast  Upon  the  Holder. 

974.  Principles  Governing  the  Question. 

975.  Knowledge  of  Facts  and  Not  Their  Legal  Effect. 

976.  Excuses  of  a  General  Nature  Enumerated. 

977.  Excuses  of  a  Special  Character. 

978.  Inevitable  Accident. 

979.  Pi-e valence  of  Malignant  Fever. 

980.  Existence  of  War. 

981.  Interdiction  of  Commerce. 
983.  Actual  Hostilities. 

983.  Late  War. 

984.  Interruption  of  Postal  Communication. 

985.  War  Wliere  Note  Payable. 

986.  Not  Excused  if  Intercourse  Legal. 

987.  Loss  of  Note  by  War  No  Excuse. 

988.  Entitled  to  Notice  When  Obstruction  Removed. 

989.  Party  Not  Required  to  Violate  Law  of  His  Domicile. 

990.  Due  Diligence. 

991.  Notice  of  Facts  Excusing  Demand. 

992.  Obstructions  Removed  —  Demand  and  Notice. 

993.  Death  of  Holder. 

994.  Sudden  Sickness  and  Death  of  Agent. 

995.  Sickness  Must  be  Sudden  and  Severe. 

996.  Special  Excuses  Treated  as  Waiver. 

997.  Bill  Drawn  for  Benefit  of  Drawer. 

998.  Note  for  Accommodation  of  Payee. 

999.  For  Accommodation  of  Drawee  or  Acceptor. 

1000.  Not  Excused  by  Promise  of  Drawer  to  Provide  for  Bill. 

1001.  No  Funds  in  Hands  of  Drawer. 

1002.  Application  of  the  Rule  Confinedv 

1003.  American  Cases  Decided  on  Insufficient  Reason. 

1004.  No  Right  to  Expect  Payment. 

1005.  Drawer  Against  Goods  in  Transitu. 
1006._  Opinion  of  Marshall. 

1007.  Illustration. 

1008.  Mere  Existence  of  Credit. 

1009.  Expectation  of  Payment  Must  Continue  to  Maturity. 

1010.  Need  Not  be  Anticipated  from  Drawee. 

1011.  Promise  from  Drawee. 

1012.  Where  Drawee  Has  Already  Honored  Drafts. 

1013.  Running  Account  Between  Parties. 

1014.  Suspecting  Absence  of  Funds,  No  Excuse. 

1015.  Drawer  Being  in  Debt  to  Drawee,  No  Excuse. 

1016.  No  Expectation  of  Funds  at  Place,  No  Excuse. 


WAIVER   AJSTD    EXCUSE.  499 

§  1017.  No  Excuse  for  Failing  to  Notify  Indorser. 

1018.  Accommodation  Indorser. 

1019.  Indorser,  with  Notice  of  Facts  Excusing  Notice. 

1020.  Former  Partnership  Between  Drawer  and  Drawee,  No  Excuse. 

1021.  Partner  Drawing  Upon  His  Firm,  Not  Entitled  to  Notice 

1022.  Goods  Purchased  for  Use  of  Firm,  Will  Not  Excuse. 

1023.  Fraud  by  Indorser  Excuses  Notice. 

1024.  Motives  for  Indorsement  Immaterial. 

1025.  Adding  the  Word  "  Surety,"  No  Excuse. 

1026.  Presence  of  Indorser  When  Payment  Refused,  No  Excuse. 

1027.  Attachment  of  Funds,  No  Excuse. 

1028.  Note  Void  at  Inception,  Notice  Unnecessary. 

§  930.  General  Character  of  Waiver.—  The  conse- 
■  quences  of  a  waiver  of  notice  by  an  indorser  or  drawer,  or 
of  anything  by  which  notice  will  be  excused,  are  substan- 
tially the  same.  The  party  who  otherwise  would  be  en- 
titled to  notice  of  the  dishonor  of  the  bill  or  note,  as  a 
condition  precedent  to  the  fixing  of  his  liability,  by  such 
Avaiver,  or  facts  excusing  notice,  becomes  unconditionally 
liable.  But  notwithstanding  the  identity  of  results,  there  is 
an  essential  difference  between  what  is  described  in  the 
books  as  a  waiver,  and  what  is  held  to  excuse  the  notice  by 
which  the  obligation,  implied  by  the  act  of  drawing  a  bill  or 
indorsing  a  note,  loses  its  conditional  character  and  becomes 
a  fixed  hability.  The  waiving  of  this  right  is  either  ex- 
pressly or  by  implication  the  voluntary  act  of  the  party  for 
whose  benefit  the  law  requires  the  notice  to  be  given.  "While 
matters  in  justification  or  excuse  of  the  omission  of  duty  on 
the  part  of  the  holder  may  arise  without  any  act  of  volition 
on  the  part  of  the  antecedent  party  whose  habihty  depends 
upon  notice.^ 

§  931.  Division  of  Subject. —  In  treating  this  branch  of 
our  subject  the  voluntary  act  of  the  party,  by  which  the 
necessity  for  notice  is  dispensed  with,  will  be  considered  firet 
in  order ;  and  secondly,  such  matters  as  are  held  to  excuse 
the  giving  of  due  notice,  without  regard  to  the  intentions  of 
the  party  to  be  notified. 

1  Story  on  Pi-om.  Notes,  g  358. 


500  KOTICE    OF   DISHONOR   OF   COMMEECIAL   PAPEK. 

§  033.  Wairer  May  l>e  Antecedent  or   Subsequent. — 

Judge  Story  lays  down  the  doctrine  that  in  cases  of  waiver, 
strictly  so  called,  the  indorser  is  discharged  from  all  liability 
by  the  antecedent  laches  of  the  holder  or  other  party ;  and 
he  incurs  a  new  liability  by  his  subsequent  assent  and  waiver 
of  his  rights,  after  the  laches  is  incurred,  and  has  been  fully 
made  known  to  him.^  But  if  we  are  to  follow  this  learned 
author  in  what  he  says  in  the  same  coimection  respecting 
an  excuse  for  the  omission  or  neglect  of  due  notice,  and 
hold  with  him  that  it  is  "  in  its  nature  a  justification  for 
such  omission  or  neglect,  without  any  consent,  express  or 
impUed,  on  the  part  of  the  indorser,  to  be  bound  by  it,"  we 
shall  find  many  instances  where  notice  is  voluntarily  dis- 
pensed with  by  the  indorser  or  drawer,  long  prior  to  the 
maturity  of  the  instrument,  and  consequently  before  the 
holder  could  have  been  guilty  of  laches,  and  will  feel  justi- 
fied in  classing  these  as  instances  of  waiver.  This  classifica- 
tion not  only  seems  logical  and  consistent,  as  there  can  be 
no  good  reason  why  a  right  may  not  be  waived  in  advance, 
but  it  has  the  additional  advantage  of  meeting  the  general 
understanding  of  a  proper  application  of  the  term. 

§  933.  Antecedent  Waiver  in  Writing. —  A  common  ex- 
ample of  express  waiver  before  maturity  is  when  by  apt 
words  the  intention  to  dispense  with  this  formahty  is  ex- 
pressed upon  some  portion  of  the  instrument,  or  there  is  an 
express  waiver  of  demand,  as  "  I  hereby  waive  protest  on 
the  within  note,  and  hold  myself  bound  for  the  payment  of 
the  same,  as  if  legally  protested; "^  or  "I  hereby  waive 
notice,  demand,  protest  and  due  diligence ; " '  and  even 
where  it  was  written  in  the  note,  "  Protest  and  notice  of 
protest  waived,"  this  was  held  sufiicient  to  waive  not  only 
notice,  but  demand.* 


1  Story  on  Prom.  Notes,  §  358. 
2BaU  V.  Greaud,  14  La.  An.,  305. 
»Neal  V.  Wood,  23  Ind.,  533. 
*  Gordon  r.  Montgomery,  19  Ind.,  110. 


WAIVER   AND   EXCUSE.  501 

§934.  Effect  of  "Protest  Waived."— So,  where  the 
words  "protest  waived"  were  used  with  reference  to  a  prom- 
issory note,  it  was  held  to  amount  to  a  waiver  of  both 
demand  and  notice,  notwithstanding  the  fact  that  tlie  mean- 
ing which  attaches  to  the  word  "protest"  is  entirely  differ- 
ent from  that  of  the  word  "  notice."  The  former  is  only 
applicable  in  strictness  to  foreign  bills  of  exchange,  while 
the  latter  applies  to  bills  botli  foreign  and  inland,  and  nego- 
tiable promissory  notes,  indiscriminately.  But  when  applied 
to  promissory  notes,  the  word  "  protest,"  by  general  usage 
and  understanding,  means  the  taking  of  sbch  steps  as  are 
necessary  to  charge  an  indorser,  which  include  both  demand 
and  notice.* 

§  935.  "  I  Waive  Demand  of  Protest."— So,  also,  where 
the  indorsers,  on  the  transfer  of  a  note  to  plaintiff,  agreed 
to  indorse  it  and  waive  demand  and  notice,  and  accordingly 
made  the  following  indorsement  thereon,  signed  by  them  in 
their  firm  name:  "I  waive  demand  of  protest,"  it  was  held 
that  the  language  of  the  indorsement,  although  clumsily 
worded,  might  be  construed  as  implying  an  intention  to 
waive  both  demand  and  notice,  and  that,  if  the  language 
were  too  indefinite  or  ambiguous,  the  meaning  might  be 
made  out  by  parol.^ 

§  936.  Waiver  of  Notice  Does  Not  Include  Present- 
ment.—  The  waiver  may  be  embodied  in  the  instrument 
over  the  signature  of  the  drawer  or  maker,  and  thereby  be- 
come binding  upon  all  those  who  subsequently  become 
parties  thereto,^  or  it  may  be  incorporated  with  the  contract 
of  indorsement  of  one  of  the  parties,  so  as  to  be  binding 
upon  himself,  without  affecting  subsequent  or  prior  parties 
to  the  bill  or  note.    In  general,  a  waiver  of  notice  does  not 

1  Carpenter  v.  Reynolds,  43  Miss.,  807;  Jaccard  v.  Anderson,  37  Mo.,  91. 

2 Porter  v.  Kemball,  53  Barb.,  467;  Union  Bank  v.  Hyde,  6  Wheat., 
572.    Contra,  Bird  v.  Le  Blanc,  6  La.  An.,  470;  Wall  v.  Bry,  1  id.,  312. 

"Bryant  v.  Merchants'  Bank  of  Ky,,  8  Bush,  43;  Smith  v.  Lockridge, 
id.,  423;  Lowry  v.  Steele,  27  Ind.,  168;  Woodman  v.  Thurston,  8  Cush., 
157. 


502  KOTICE   OF   DISnONOE   OF    COMMEKCIAL   PAPER. 

include  presentment  or  demand,  nor  does  it,  by  implication, 
excuse  a  failure  in  either  of  these  respects ;  ^  but  this  rule  is 
modified  somewhat  to  meet  the  peculiar  circumstances  of 
particular  cases.  It  depends,  to  some  extent,  upon  the  time 
when  the  waiver  is  made.  Accordingly,  where  such  waiver 
was  indorsed  on  the  note  on  the  day  of  maturity  —  after 
the  holder  had  informed  the  prior  party  that  he  had  been 
to  the  j)lace  of  payment,  and  there  were  no  funds  there,  the 
written  waiver  of  notice  of  protest  was  held  to  waive  any 
irregularity  of  demand  as  well  as  notice.- 

§  937.  No  Special  Form  Required. —  iJlo  particular  form 
of  words  is  necessary  to  waive  notice.  Whatever  language 
is  employed,  it  wiU  be  suificient  if  it  convej^s  the  informa- 
tion that  the  indorser  or  drawer  intends  to  absolve  the 
holder  from  the  exercise  of  that  diligence  in  making  demand 
and  giving  notice  of  dishonor  which  the  law  imposes.  So 
where  there  was  added  to  the  blank  indorsement  the  word 
"accountable,"  this  was  held  to  be  a  waiver  of  demand  and 
notice;^  and  the  same  construction  was,  in  another  case, 
given  to  the  words  "  eventually  accountable,"  when  added 
to  his  indorsement  by  the  party  transferring  the  note.*  The 
following  waiver,  indorsed  upon  a  note,  was  held  sufficient 
to  dispense  with  demand  and  notice:  "I  assign  the  within 
note  to  J.  T.,  and  hold  myself  responsible  for  the  payment 
of  the  same ;  the  said  P.  [the  maker]  to  have  two  years  to 
pay  the  same,  unless  he  prefer  to  pay  sooner,  interest  on  the 
same  to  be  paid  annually."  ^ 

§938.  Waiver  by  Letter. —  But  instances  of  waiver  prior 
to  maturity  are  by  no  means  confined  to  cases  where  the 
written  waiver  is  made  part  of  the  instrument,  or  indorsed 

iVoorhies  v.  Atlee,  29  la.,  49;  Buchanan  v.  Marshall,  33  Vt.,  561; 
Drinkwater  v.  Tebbetts,  17  Me.,  16;  Berksbh-e  Bank  v.  Jones,  6  Mass., 
534 ;  Backus  v.  Shipherd,  11  Wend. ,  639 ;  Burnham  v.  Webster,  17  Me.,  50. 

2 Scull  V.  Mason,  43  Pa.  St.,  99;  Mills  v.  Beard,  19  Cal.,  158;  Fisher  v. 
Pi-ice,  37  Ala.,  407. 

3  Fui-ber  v.  Caverly,  42  N.  H.,  74. 

*  McDonald  v.  Bailey,  14  Me.,  101. 

5  Airey  v.  Pearson,  37  Mo.,  424. 


WAIVEK   AKD    EXCUSE.  503 

thereon  when  the  note  is  transferred.  Where  the  indorser, 
a  few  days  previous  to  the  maturity  of  tlie  note  upon  whicli 
he  was  hable,  wrote  to  the  holder,  informing  him  that  the 
maker  had  failed,  acknowledged  his  own  liability,  and  asked 
indulgence  until  funds  could  be  realized  from  securities  held 
by  him  from  the  maker,  this  acknowledgment  was  held 
sufficient  to  dispense  with  both  demand  and  notice.* 

§  939.  May  be  Yerbal. —  Nor  is  it  even  necessary,  to 
render  the  waiver  of  notice  effectual  to  bind  the  drawer  or 
indorser,  that  it  should  be  reduced  to  writing.  It  has  been 
held,  in  a  few  isolated  cases,  that  as  the  Avritten  indorse- 
ment is  the  highest  and  best  evidence  of  the  indorser's  con- 
tract, it  could  not  be  varied  or  modified  by  a  parol  promise, 
and  consequently,  a  contemporaneous  verbal  promise  by  the 
indorser,  to  pay  the  note  in  the  event  the  maker  did  not, 
would  not  dispense  with  notice  of  dishonor.-  But  this  view 
of  the  question  is  ably  controverted  by  Judge  Loweie,  in 
Barclay  v.  Weaver.^  The  learned  judge  frankl}'  says :  "  I 
decided  this  cause  while  I  was  judge  of  the  court  below. 
*  *  *  But  on  the  first  point,  I  am  convicted  and  convinced 
of  error.  That  point  presents  the  question,  may  a  party 
prove  by  parol  testimony,  that,  at  the  time  of  the  indorse- 
ment of  a  promissory  note,  it  was  agreed  that  the  indorser 
should  be  absolutely  bound  for  the  payment  of  it,  without 
the  usual  demand  and  notice  ?  This  was  answered  in  the 
negative  in  the  court  beloAv,  on  the  principle  that  oral  testi- 
mony cannot  be  heard  to  vary  the  terms  of  a  written  con- 
tract. It  is  not  so,  *  ■^  *  The  most,  therefore,  that  can 
be  said  of  an  indorsement  of  negotiable  paper  is,  that  from 
it  there  is  implied  a  contract  to  pay  on  condition  of  the 
usual  demand  and  notice ;  and  that  this  implication  is  liable 
to  be  changed  on  the  appearance  of  circumstances  incon- 
sistent with  it,  whether  those  circumstances  be  shown  orally 

1  LeffingAvell  r.  White,  1  Johns.  Cas.,  99;  Minturn  v.  Fisher,  7  Cal., 
573;  Yeagerr.  Farwell,  13  Wall.,  6. 
■■^ffightower  v.  Ivey,  2  Port.  (Ala.),  308;  Barry  v.  Morse,  3  N.  H.,  132. 
» 19  Pa.  St.,  396. 


504  NOTICE   OF   DISHONOR   OF    COMMEECIAL   TAPER. 

or  in  writing."  And  in  the  same  connection  —  "  But  it  may 
well  be  questioned  whether  the  condition  of  demand  and  no- 
tice is  trul}"  part  of  the  contract,  or  only  a  step  in  the  legal 
remedy  upon  it."  Although  the  reasoning  of  this  opinion  has 
not  been  fully  adopted  in  cases  where  the  same  result  is 
reached,  the  decided  weight  of  authority  is  in  favor  of  the 
doctrine  that  the  conditions  of  the  indorser's  or  di-awer's 
contract  may  be  waived  by  a  parol  contract,  and  that  parol 
testimony  of  circumstances  tending  to  show  a  waiver  of 
such  conditions  will  be  competent  to  establish  the  fact.^ 

§  940.  May  he  Established  by  Circumstances. —  As 
already  intimated,  the  fact  of  waiver  of  notice  may  be 
established  by  the  proof  of  circumstances,  inconsistent  with 
the  right  of  the  antecedent  party  to  insist  upon  the  ob- 
servance of  the  conditions  of  his  contract,  as  well  as  by  the 
express  promise  of  such  party.  IS'ot  the  least  common  of 
these  chcmnstances  is  the  verbal  declaration  of  the  indorser 
or  drawer,  which  implies  a  waiver  of  the  conditions  upon 
which  his  contract  depends.  As  where  the  maker  and  in- 
dorser of  a  note  resided  in  the  same  house,  and  the  holder 
sending  a  written  notice  to  the  maker  on  the  day  of  its 
nominal  maturity  —  before  the  expiration  of  the  three  days 
of  OTace  —  the  maker  was  absent  from  home,  and  the 
holder's  messenger  exhibited  the  note  to  the  indorser,  Avho 
read  it  and  informed  the  messenger  that  the  maker  would 
see  the  holder  in  a  short  time,  and  wished  him  not  to  sue 
the  note  until  the  maker  could  see  him,  it  was  held  that 
this  was  a  request  for  further  forbearance,  and  was  calcu- 
lated to  induce  the  holder  to  believe  that  measures  were 
being  taken  to  meet  the  note.  It  was  held  to  amount  to 
an  impUed  waiver  of  demand  and  notice.'  So  where  th*^ 
drawer  requested  the  holder  not  to  present  the  draft 


1  Fuller  V.  M'Donald,  8  Me.,  213;  Lane  v.  Steward,  20  Me.,  98;  Farm- 
ers' Bank  V.  Waples,  4  Harr.  (Del.),  429;  Phipson  v.  Kneller,  1  Stai'k., 
116;  Barker  v.  Parker,  6  Pick.,  80. 

a  Gove  v.  Vining,  7  Mete.,  213. 


"WAIVEK   AND   EXCUSE.  505 

once,  but  to  hold  on  to  it  for  a  time,  he  v,  as  held  thereby  to 
have  waived  demand  and  notice.^ 

§941.  Promise  to  Maker.— So,  also,  in  Marshall  v. 
Mitchell,^  the  language  of  Judge  Wells,  in  rendering  the 
opinion,  is,  "  that  the  promise  of  defendant  (the  indorser), 
several  months  before  the  note  is  due,  made  to  the  maker, 
that  he  would  take  it  up,  was  a  fact  of  which  the  plaintiff 
(the  holder)  had  a  right  to  avail  himself.  *  *  -  When 
the  indorser  says  to  the  maker,  he  will  pay  the  note,  it  is  a 
declaration  that  the  other  parties  need  not  give  themselves 
any  trouble  in  relation  to  it."  It  is  probable,  however,  that 
whether  a  merely  gratuitous  promise  of  this  kind,  made  b}'^ 
the  indorser  to  the  maker,  would  operate  to  absolve  the 
holder  from  the,  duty  of  giving  the  promisor  due  notice  of 
dishonor,  would  depend  somewhat  upon  the  holder's  having 
notice  of  such  promise.  But  where  the  indorser  informed 
the  holder  of  the  failure  of  the  maker,  before  the  note  be- 
came due,  and  said  further  that  he  should  have  no  trouble 
about  it,  as  the  note  should  be  paid,  this  was  properly  held 
a  waiver  of  demand  and  notice,  though  neither  of  these 
conditions  were  expressly  mentioned.^  And  upon  the  same 
principle,  where  the  indorser,  at  the  time  of  the  transfer  of 
the  note,  informed  the  indorsee  that  he  would  be  at  the 
place  of  payment  when  the  note  fell  due,  and  would  then 
take  it  up  if  it  were  not  paid  by  any  other  party  to  it,  this 
was  held  to  be  an  agreement  to  pay  on  but  one  condition, 
and  that  all  others  implied  in  the  contract  of  indorsement, 
including  that  of  notice,  were  waived."* 

§  942.  When  Promise  Supported  by  Consideration.— 
It  is  equally  certain  that  where  the  promise  to  the  maker 
is  not  a  mere  gratuity  on  the  part  of  the  indorser,  but  is 
supported  by  a  valid  consideration,  as  the  return  of  the 
original  consideration  of  the  note,  or  where  other  property 

1  Sheldon  v.  Chapman,  31  N.  Y.,  644 

2  35  Me.,  221. 

3  Whitney  v.  Abbot,  5  N.  H.,  378. 

*Boyd  V.  Cleveland,  4  Pick.,  524;  Lane  v.  Steward,  20  Me.,  98. 


50G  NOTICE    OF   DISHONOE   OF   COMMEKCIAL   PAPEE. 

of  the  maker  is  taken  absolutely  by  the  indorser,  with  the 
agreement  to  take  up  the  note,  whether  this  be  before  or 
after  dishonor,  it  will  amount  to  a  waiver  of  all  the  condi- 
tions of  the  contract  of  indorsement.^ 

§943.  ludemuity  Does  Not  Always  Waive. —  But  the 
principle  upon  which  notice  is  waived,  or  excused,  by  the 
acceptance  of  indemnity,  on  the  part  of  an  indorser,  and 
his  undertaking  to  become  the  j!)rincipal  debtor,  has  been 
carefully  restricted  in  its  application,  so  as  not  to  include 
all  cases  where  the  party  conditionally  liable  is  indemnified 
against  loss.  Some  of  the  cases  holding  that  notice  is 
waived  or  excused  by  indemnity  taken  are  decided  upon 
the  ground  that  the  want  of  notice  can  work  no  injury  to 
the  indorser,  provided  he  holds  sufficient  secm^ity  to  save 
him  harmless ;  -  and  others,  where  the  indorser  has  taken  a 
general  assignment  of  all  the  maker's  property  before  ma- 
turity of  the  note,  upon  the  ground  that  the  indorser,  having 
already  acquired  all  that  he  could  obtain  by  pursuing  his 
remed}"  against  the  maker,  will  not  desire  to  avail  himself 
of  such  remedy,  and  consequently  notice  would  be  fruitless.' 
Most  of  the  cases  cited,  where  these  doctrines  are  broadly 
announced,  seem  to  be  decided  in  accordance  with  sounder 
principles  than  those  loosely  stated  as  the  ground  of  the 
decisions. 

§  944.  Note  for  Real  Estate,  Legal  Title  Still  in 
Grantor. —  For  example,  in  Develing  v.  Ferris,"*  the  note 
was  given  for  real  estate  sold  by  the  indorser  to  the  maker, 

1  Andrews  v.  Boyd,  3 Mete,  434 ;  Taunton  Bank  v.  Richardson,  5  Pick., 
436;  Scott  v.  Greer,  10  Pa.  St.,  103. 

2Holman  v.  Whitney,  19  Ala.,  703;  Barrett  v.  Charleston  Bank,  3 
McMullen,  191 ;  Stephenson  v.  Primrose,  8  Port.  (Ala.),  155. 

3 Mechanics'  Bank  v.  Griswold,  7  Wend.,  165;  Bond  v.  Farnham,  5 
Mass.,  170;  Commercial  Banku.  Hughes,  17  Wend.,  94;  Peny  v.  Green, 
19  N.  J.  Law,  61 ;  Bai'ton  v.  Baker,  1  Serg.  &  R.,  334;  DeveUng  v.  Ferris, 
18  Ohio,  170;  Stephenson  v.  Primrose,  siijyra;  Bank  of  South  CaroUna 
V.  Meyers,  1  BaUey,  412 ;  Kyle  v.  Greene,  14  Ohio,  495 ;  Kramer  v.  San- 
ford,  4  Watts  &  S..  328;  Walters  v.  Munroe,  17  Md.,  154;  Prentiss  r. 
Danielson,  5  Conn.,  175. 

4 18  Ohio,  170. 


WAIVEE  AND   EXCUSE.  507 

and  the  legal  title  was  expressly  reserved  by  the  grantor, 
until  the  payment  of  the  purchase  money.  This  amounted 
to  more  than  the  taking  of  indemnity,  the  sufficiency  of 
which  could  only  be  approximate!}^  determined,  and  more 
than  the  acceptance  of  an  assignment  of  the  maker's  entire 
estate,  regardless  of  its  sufficiency.  Kyle  v.  Greene '  pre- 
sents substantially  the  same  state  of  facts,  and  the  conclusion 
reached  is  the  same. 

§  945.  Where  Waiver  Depends  on  Sulliciency  of  In- 
demnity.—  The  reasoning  upon  which  those  cases  depend, 
where  the  question  of  waiver  is  made  to  turn  upon  the  suf- 
ficiency of  the  indemnity,  and  that  to  the  extent  of  the 
value  of  the  indemnity  the  indorser  may  be  held  hable 
without  notice,  because  he  suffers  no  injury  on  account  of 
its  omission,  is  calculated  to  open  a  question  of  fact,  sub- 
versive of  the  doctrine  of  notice  of  dishonor  of  negotiable 
securities,  in  its  application  to  all  cases.  If,  where  the  in- 
dorser has  received  collateral  security,  Ave  are  to  inquire  into 
its  sufficiency  to  determine  whether  he  Avill  be  required  by 
a  failure  to  give  him  notice  of  the  dishonor  of  the  instru- 
ment upon  which  he  has  become  conditionally  liable,  there 
seems  no  reason  why,  in  every  case  that  may  arise,  the  con- 
ditional nature  of  his  contract  may  not  be  made  to  depend 
upon  the  question  whether  he  is  really  prejudiced  by  a  fail- 
ure to  give  the  notice  within  the  time  and  in  the  manner 
and  mode  which  the  courts  have  almost  universally  agreed 
upon  as  reasonable  and  just.  It  is  well  known  that  in  reply 
to  the  defense  of  insufficient  notice,  the  courts  will  not  enter- 
tain the  excuse  that  the  indorser  suffered  no  injury  by  the 
omission  or  neglect.  They  will  not  go  into  detailed  exam- 
ination of  the  condition  of  the  parties  and  the  circumstances 
of  the  transaction  in  order  to  determine  whether  the  general 
rule  will  apply.- 

§  946.  Indemnity  Taken  for  His  Own  Security. — 
Where,  however,  the  indorser  has,  by  his  own  voluntary  act, 

1 14  Ohio,  495. 

2  Hill  V.  Martin,  13  Mart.,  177;  Dennis  v.  Mortice,  3  Esp.,  158. 


OOS  KOTICE    OF   DISnONOK    OF    COMMEKCIAL   PAPER. 

rendered  it  impossible  for  the  maker  to  pay  a  note,  or  has 
received  into  his  own  hands  a  fund  sufficient  to  satisfy 
the  same,  under  a  contract,  express  or  implied,  to  become 
the  principal  debtor,  there  is  abundant  reason  for  holding 
that  he  thereby  waives  demand  and  notice,  and  consents 
that  the  obligation  he  has  assumed  shall  become  fixed 
and  unconditional.'  But  the  mere  taking  of  security  to 
indemnify  him  against  possible  loss  does  not  alter  the 
character  of  his  original  undertaking.  The  promise  which 
the  law  implies  from  his  indorsement  is  that  'if  payment 
of  the  note  or  bill  is  demanded  at  maturity,  if  payment 
is  refused,  and  if  he  is  duly  notified  of  the  non-payment, 
then  he  Avill  be  bound  to  pay  the  same,  and  is  entitled  to 
look  to  the  party  ultimately  hable  for  reimbursement. 
This  is  the  nature  of  the  liability  against  which  he  seeks 
to  be  indemnified,  and  until  all  the  contingencies  upon 
which  that  liability  depends  have  happened,  and  all  the 
conditions  duly  performed  by  the  obligee,  his  obligation  to 
subsequent  parties  retains  its  conditional  character.  When 
the  time  within  which  he  should  be  notified  has  expired,  he 
may  safely  return  his  security  to  the  hands  from  which  it 
was  received.  The  indemnity  was  taken  for  his  own  secu- 
rity, and  he  is  under  no  obligation  to  retain  it  for  the  bene- 
fit of  other  parties  on  the  same  paper.^ 

§  947.  Ilhistratiou  of  Foregoing  Doctrine. —  In  Clegg 
13.  Cotton,'  the  drawer  of  a  bill  of  exchange,  being  the  agent 
of  the  drawee,  had  placed  funds  in  the  hands  of  the  in- 
dorser  by  way  of  indemnity,  which  were  to  be  returned  on 

iSeacord  v.  Miller,  13  N.  Y,,  55;  Denny  v.  Palmer,  5  Ired.,  610;  Cor- 
noy  V.  Da  Costa,  1  Esp.,  303. 

-Denny  v.  Palmer,  5  Ired.,  610;  Seacord  v.  MUer,  13  N.  Y.,  55;  Tay- 
lor V.  French,  4  E.  D.  Smith,  458;  Spencer  v.  Harvey,  17  Wend.,  459; 
Clegg  V.  Cotton,  3  Bos.  &  Pul.,  239;  Oswego  Bank  v.  Knower,  HiU  «fe 
Dan.,  132;  Ray  v.  Smith,  17  WaU.,  411;  Watkins  v.  Crouch,  5  Leigh, 
522;  Marshall  u.  ]Mitchell,  34  Me.,  227;  Haskell  v.  Boardman,  8  Allen, 
38;  Wilson  v.  Senier,  14  Wis.,  380;  Moses  v.  Ela,  43  N,  H.,  557;  Holland 
V.  Turner,  10  Conn.,  308. 

33  Bos.  &  Pul.,  239. 


WAIVER   AND   EXCUSE.  509 

his  release  from  liability.  The  court  held  that  he  was  re- 
leased by  a  failure  of  the  holder  to  notify  him  of  the  dis- 
honor of  the  bill,  and  could  consequently  return  the  funds 
held  as  security. 

§  948.  ludorser  with  Funds  of  Maker  Does  Not  Become 
Principal. —  In  Kay  v.  Smith,'  the  funds  in  the  hands  of  the 
indorser  were  derived  from  the  profits  of  business  carried 
on  by  the  indorser  and  maker  as  partners,  and  the  latter 
had  merely  authorized  the  former  to  apply  them  to  the  pay- 
ment of  the  notes  at  their  maturity,  but  the  court  refused 
to  decide,  as  a  conclusion  of  law,  that  the  indorser,  as  be- 
tween himself  and  the  maker,  had  assumed  the  obligation 
of  a  principal  debtor. 

§  949.  Assignment  to  Trustees  Will  Not  Excuse.— The 
prominent  circumstances  of  the  case  of  Watkins  v.  Crouch  - 
were,  that  there  was  an  assignment  to  a  trustee  of  all  the 
maker's  property,  in  trust  to  pa}^  off  several  debts,  and 
among  them  one-fourth  the  principal  and  interest  of  the 
note  upon  which  the  defendant  was  an  indorser.  This  was 
held  insuflBcieut  to  dispense  with  notice  of  the  dishonor. 

§  950.  Taking  Mortgage  of  All  3Iaker's  Property,  Held 
No  Waiver. —  In  Haskell  v.  Boardman,*  the  point  decided 
was  that  a  mortgage  of  all  the  maker  s  property,  accepted 
by  the  indorsers,  conditioned  that  the  grantor  shoidd  per- 
form all  contracts  which  the  grantees  had  theretofore  or 
should  thereafter  sign,  indorse,  etc.,  and  save  the  said  grant- 
ees harmless  from  all  costs  and  expense  in  consequence 
tliereof,  would  not  amount  to  a  waiver  of  notice  of  dishonor 
of  the  instrument  indorsed. 

§951.  Indemnity  Stronger  Reason  for  Notice.—  In  ren- 
dering the  opinion  in  Taylor  v.  French,''  the  learned  judge 
declares  that  instead  of  the  security  for  the  indorsement 
affording  a  reason  for  dispensing  with  notice  to  the  indorser 

»17WaU.,411. 

2  5  Leigh,  523. 

3  8  AUen,  38. 

*4E.  D.  Smith,  458. 


510  NOTICE    OF   DISHONOR   OF   COMMEKOL&X   PAPER. 

thus  secured,  it  furnishes  a  stronger  reason  why  he  should 
be  informed  of  the  non-payment.  "Without  notice  thereof 
he  might  suppose  it  to  have  been  paid,  and,  in  consequence 
of  such  neglect,  have  parted  with  his  security.  Substan- 
tially the  same  reasoning  is  employed  by  Judge  Bissell  in 
rendering  the  opinion  in  the  case  of  Holland  v.  Turner.^ 

§  1)52.  Illustration. —  The  possibilities  hinted  at  above 
are  practically  illustrated  by  an  early  English  case.^  There, 
certain  notes  were  indorsed  by  G.  for  D,,  who  was  insolv- 
ent. A  fcAV  days  before  maturity  the  indorser  informed 
the  holder  that  if  the  note  was  sent  him  he  would  pay  it. 
This  was  construed  to  mean  that  he  would  pay  it  if  it  came 
to  him  in  the  regular  way  after  being  duly  presented.  At 
the  time  of  making  the  offer,  the  indorser  had  in  his  posses- 
sion a  fund  belonging  to  D.  from  which  to  pay  the  note. 
Demand  not  being  made  until  three  days  after  maturity,  the 
indorser  gave  up  the  funds  and  was  held  discharged  for 
want  of  due  notice. 

§  053.  Indorsement  of  llenewal  Note. —  It  has  been  held 
that  the  mere  indorsement  of  a  renewal  note,  in  anticipa- 
tion of  the  non-payment  of  the  original  obligation  at  ma- 
turity, where  the  bank  holding  the  original  refused  to 
discount  the  renewal,  will  not  amount  to  waiver  of  notice ; 
for  notwithstanding  the  fact  that  the  maker  may  fail  to 
renew,  this  would  not  be  conclusive  evidence  that  payment 
was  impossible.^ 

§  954.  Request  No  Waiver  When  Not  Acceded  to. —  The 
very  limit  of  strictness  in  favor  of  the  indorser's  right  to 
notice  seems  to  have  been  reached,  if  not  overstepped,  in 
the  case  of  Cayuga  Bank  v.  Dill.*  There  the  indorser 
called  upon  the  holder  on  the  day  of  the  maturity  of  the 
instrument,  and  told  him  that  the  maker  would  not  pay, 
as  he  was  absent  from  the  country,  and  to  let  it  lie  over 

110  Conn.,  308. 

2  Nicholson  v.  Gouthit,  S  H.  Bl.,  609. 

3  May  V.  Boisseau,  8  Leigh,  164. 
*  5  Hill,  403. 


WAIVEE   AND    EXCUSE.  511. 

until  his  return,  when  $100  would  be  paid,  and  the  note  re- 
newed for  the  balance.  The  holder  failed  tq  protest  the 
note,  through  a  mistake  of  the  clerk  of  the  bank,  as  to  the 
day  of  its  maturity,  and  not  on  account  of  this  conversa- 
tion ;  and  for  this  reason  alone  it  was  held  that  the  express 
request  of  the  indorser,  to  let  the  note  lie  over,  did  not 
amount  to  a  waiver,  and  he  was  consequently  discharged  by 
the  laches. 

§  955.  Waiver  by  Indorser. —  Although  a  waiver  of  no- 
tice in  the  body  of  the  instrument  will  be  binding  upon  all 
those  who  become  parties  thereto,  the  same  result  does  not 
follow  a  waiver  by  the  first  indorser.  Each  indorsement  is 
the  personal  obligation  of  the  party  who  makes  it,  and  the 
subsequent  indorser  will  be  entitled  to  notice  notwithstand- 
ing a  waiver  thereof  by  a  prior  party. ^ 

§  956.  Conflicting  Yiews.— There  is  a  lack  of  harmony 
between  the  authorities,  respecting  the  consequences  of  a 
promise  by  the  indorser  or  drawer  to  pay  the  dishonored 
instrument.  This  difference,  however,  is  in  regard  to  the  tech- 
nical operation  of  such  subsequent  promise,  as  well  as  the 
extent  to  which  it  affects  the  liability  of  the  promisor.  The 
cases  of  one  class  are  decided  upon  the  hypothesis  that  there 
has  been  a  failure  of  notice;  but  by  the  subsequent  promise 
they  hold  the  neglect  or  omission  is  waived.'-  Those  of 
another  class  are  decided  upon  the  theory  that  although 
there  is  no  direct  proof  of  notice,  the  subsequent  promise 
raises  a  presumption  that  such  notice  was  given,  which  can 
only  be  overcome  by  proof  of  the  negative  of  that  proposi- 

1  Central  Bank  v.  Davis,  19  Pick.,  373. 

2  Hopkins  v.  Liswell,  12  Mass.,  52;  Donaldson  v.  Means,  4  Dall.,  109; 
Oglesby  v.  Steamboat,  10  La.  An.,  117;  Salisbury  v.  Renick,  44  Mo.,  554; 
Cheshire  v.  Taylor,  29  la.,  492;  Viele  v.  Germania  Ins.  Co.,  26  id.,  9; 
Hughes  V.  Bowen,  15  id.,  446;  Mathews  v.  Allen,  16  Gray,  594;  Smith 
V.  Curlee,  59  lU.,  221 ;  Pate  r.  McClure,  4  Rand.,  164;  Debuys  v.  MoIIere, 
3  Mart.  (N.  S.),  318;  Woodson  v.  Eastman,  10  N.  H.,  359;  Cram  r.  Sher- 
burne, 14  Me.,  48;  Leonard  v.  Gary,  10  Wend.,  504;  Hazard  v.  White, 
20  Ark.,  155;  Thornton  v.  Wynn,  12  Wheat.,  183;  Stix  v.  Mathews,  63 
Mo.,  371 ;  Chaffee  v.  M.  C.  &  N.  W.  R.  R.  Co.,  64  Mo.,  193. 


512  NOTICE   OF    DISHONOR   OF   COMMEECIAL   PAPEK. 

tion.'  There  is  still  a  third  class  where  there  seems  to  bo 
an  attempt  to  hold  the  promisor  upon  both  gromids,  or  upon 
either  in  the  alternative.^ 

§  957.  Condition  of  Waiver  by  Subsequent  Promise. — 
Where  the  effect  given  to  the  subsequent  promise  is  that  it 
shall  be  regarded  as  a  waiver  of  the  omission,  or  neglect  to 
give  notice  of  dishonor,  it  is  subject  to  certain  conditions 
which  cannot  be  dispensed  with  in  any  instance.  The  prom- 
ise must  be  absolute,  unconditional,  and  made  with  a  full 
knowledge  of  the  laches  of  the  holder  or  other  subsequent 
party  in  neglecting  to  make  demand  or  give  due  notice  of 
non-paj'ment,  as  well  as  a  knowledge  of  any  ot'her  circum- 
stances by  which  the  indorser's  rights  may  be  affected." 

§  958.  Subsequent  Promise  Without  Knowledge.— 
Where  the  indorser  was  in  possession  of  full  knowledge  of 
the  dishonor,  and  also  was  aware  that  the  time  within  which 
notice  should  have  been  given  had  expired,  but  was  igno- 
rant, at  the  time  of  the  subsequent  promise,  that  a  prior 
party  had  been  permitted  to  erase  his  indorsement,  the  sub- 
sequent promise  was  held  not  binding  upon  him.* 

§  959.  Promise,  Express  and  Implied. —  The  doctrine 
as  laid  down  b}^  Lord  Mansfield  in  Barradaile  v.  Lowe  ^  is 
that  an  indorser,  after  having  been  discharged,  cannot  be 
rendered  liable  on  the  bill  except  by  an  express  promise 
with  knowledge  of  the  fact.    This  interpretation  of  the  rule 

'Lawrence  v.  Ralston,  3  Bibbj  102;  Donelly  v.  Howie,  Hayes  &  J., 
436;  Huntington  r.  Harvey,  4  Conn.,  124;  Gibbon  %\  Coggon,  2  Camp., 
188. 

2 Union  Bank  v.  Grimshaw,  15  La.,  321 ;  Tebbetts  v.  Dowd,  23  Wend., 
379;  Breed  v.  HOUiouse,  7  Conn.,  523. 

3 Ford  V.  Dallom,  3  Cold.,  67;  Blum  v.  Bidwell,  20  La.  An.,  43;  Van 
Wickle  V.  Downing,  19  id.,  83;  Baskeville  v.  Harris,  41  Miss.,  535;  Bank 
of  U.  S.  V.  Leathers,  10  B.  Mon.,64;  Kelley  v.  Brown,  5  Gray,  108;  Gaw- 
try  V.  Doane,  48  Barb.,  148;  Arnold  v.  Dresser,  8  AUen,  435;  Walker  v. 
Rogers,  40  111.,  278;  U.  S.  Bank  v.  Southard,  17  N.  J.  Law,  473;  Hunter 
V.  Hook,  M  Barb.,  468;  Martin  v.  Winslow,  2  Mason,  241;  Spurlock  v. 
Union  Bank,  4  Humph.,  336. 

*Low  V.  Howard,  10  Cush.,  159. 

54  Taunt.,  93. 


WAIVEK    AND    EXCUSE.  513 

was  applied  to  the  case  decided  where  it  was  sought  to  bind 
the  indorser,  who  was  incontestabl}'  discharged  bj  the  neg- 
lect of  the  holder  to  give  notice  of  dishonor,  but  who  had, 
after  such  neglect  came  to  his  knowledge,  written  to  the 
holder  to  send  the  bill  to  a  prior  indorser.  There  is  per- 
haps no  case  where  the  giving  of  such  gratuitous  advice 
has  been  construed  into  a  promise  to  pa}^;  but  there  seems 
to  be  no  sohd  reason  why  contracts  of  this  kind  should  be 
restricted  to  such  as  are  express  in  their  terms.  Later  au- 
thorities have,  without  abandoning  in  any  degree  the  doc- 
trine that  the  promise  should  be  unconditional,  decided  that 
the  indorser  could  be  held  by  an  implied  as  well  as  an 
express  promise. 

§  960.  Implied  Promise. —  For  example,  where,  subse- 
quent to  the  dishonor,  and  in  the  absence  of  notice,  the 
indorser,  with  knowledge  of  the  laches,  makes  a  payment  on 
the  bill  or  note,  this  has  been  construed  as  an  implied  prom- 
ise to  pay  the  balance.^ 

§961.  Promise  to  "^See  it  Paid."— So  where  the  in- 
dorser, on  being  infornied,  more  than  four  weeks  after  the 
note  became  due,  that  it  had  not  been  paid,  made  no  objec- 
tion that  he  had  not  been  seasonably  notified  of  the  dis- 
honor, but  said  that  he  would  see  it  paid ;  although  this 
could  hardly,  in  strictness,  be  called  an  express  promise  to 
pay,  it  was  regarded  as  sufficient  to  bind  the  indorser  to  the 
fulfillment  of  the  terms  of  liis  indorsement,  as  though  he 
had  received  due  notice.- 

§  962.  Recitals  in  Contract  Acknowledging  Bill. —  So, 
also,  the  recitals  in  a  contract  between  the  drawer  and  prior 
indorser  of  a  bill,  to  the  effect  that  the  bill  was  overdue,  and 
ought  to  be  in  the  hands  of  the  prior  indorser,  and  that 
the  latter  should  take  the  money  due  him  on  the  bill 
by  instalments,  was  admitted  in  evidence,  in  an  action  by 


iKnappr.  Eunals,  37  Wis.,  135;  Swan  v.  Hodges,  3  Head,  251;  Teb- 
betts  V.  Dowd,  23  Wend.,  379. 
2Ladd  V.  Kenney,  2  N.  H.,  340. 
83 


514  ^•OTICE    OF    DISHONOE    OF    COMMERCIAL   TAPEK. 

a  subsequent  indorser  against  the  drawer,  to  prove  a  waiver 
of  notice.^ 

§  963.  Subsequent  Waiver  Must  be  Unequivocal. —  Il^Tev- 
ertheless,  it  is  generally  held  that  to  constitute  an  undertak- 
ing to  pay  the  bill,  which  is  implied  from  the  conduct  of  the 
indorser  or  dra^ver  after  dishonor,  there  must  be  a  more 
unequivocal  recognition  of  liability  than  would  amount  to  a 
waiver  if  made  prior  to  maturity.  As,  in  cases  where  the 
doctrine  is  fully  recognized  that  the  acceptance  of  an  assign- 
ment of  the  maker's  entire  estate  would  amount  to  a  waiver 
if  made  prior  to  the  maturity  of  the  note,  it  is  held  that 
such  an  assignment  would  not  have  the  same  effect  when 
made  subsequent  to  dishonor,  although  aided  by  the  admis- 
sion of  the  indorser  that  he  was  "  fully  indemnified  for  all 
his  liabilities  "  for  the  maker.  The  admission  was  held  to 
refer  to  his  legal  liabilities.^ 

§  064.  Admissions  to  Strangers  Do  Not  Amount  to 
Waiver. —  The  language  used  by  the  party,  or  his  conduct 
with  respect  to  the  dishonored  bill,  does  not  always  operate 
as  an  admission  of  continued  liability.  Should  there  be  an 
express  admission  with  knowledge  of  the  failure  to  give 
due  notice,  it  would  only  be  held  binding  by  giving  it  the 
construction  of  an  implied  promise  to  pay.  If  it  were 
allowed  to  take  effect  as  a  mere  admission  of  liability,  it 
would  be  immaterial  to  whom  the  admission  was  made ; 
while  it  is  held  that  a  subsequent  statement  by  the  indoi'ser, 
to  a  stranger  to  the  bill,  that  the  fact  of  notice  not  having 
been  given  at  a  proper  time  would  make  no  difference  with 
him,  did  not  amount  to  a  waiver  of  notice.^  But  where  the 
acknowledgment  comes  in  the  form  of  a  promise,  it  will  be 
as  effective  when  made  to  the  agent  of  the  holder  as  though 
it  were  to  the  holder  himself.^ 


iGunson  v.  Metz,  1  Barn.  &  Cres.,  193. 

2  Walters  v.  Munroe,  17  Md.,  154;  Prentiss  xi.  Danielson,  5  Conn.,  175. 

soiendorf  v.  Swartz,  5  Cal.,  480. 

■•Sigerson  v.  Mathews,  20  How.,  496. 


WAIVER    AXD    EXCUSE.  515 

§  965.  Anxiety  to  Have  the  Bill  Paid,  Mi  Waiver.— 

The  mere  manifestation  of  anxiety,  by  the  party  discharged 
for  want  of  notice,  to  have  the  note  or  bill  paid  by  the  party 
iiltimatel}^  liable,  howsoever  such  anxiety  may  be  mani- 
fested, provided  it  stops  short  of  an  unconditional  promise, 
express  or  implied,  to  pay  and  discharge  the  indebtedness 
himself,  will  not  amount  to  a  waiver  of  notice.^ 

§  966.  Where  Subsequent  Promise  Evidence  of  No- 
tice.—  Those  cases  holding  strictly  to  the  doctrine  that  the 
subsequent  promise  is  to  be  taken  as  presumptive  evidence 
of  due  demand  and  notice  are  forced  to  abandon  entirely 
the  hypothesis  that  there  has  been  a  failure  of  either  of 
these  requisite  formalities.  It  would  be  extremely  illogical 
to  admit  an  element  to  a  proposition  which  was  in  direct 
contradiction  of  the  hypothesis.  If  there  has  been  a  failure 
on  the  part  of  the  holder  to  notify  prior  parties,  it  would 
be  absurd  to  say  that  an};-  subsequent  act,  with  knowledge 
of  such  failure,  vras,  prima  facie  evidence  that  there  was  no 
such  failure.  These  authorities  declare  that  where  the 
presumption  of  notice,  arising  from  the  subsequent  promise, 
is  overcome  by  countervailing  evidence,  the  promise  ceases 
to  have  any  binding  effect  upon  the  promisor,  for  the  reason 
that  it  is  without  consideration  and  void.^ 

§967.  Subsequent  Promise  a  Waiver. —  The  mere  ac- 
knowledgment of  indebtedness  has  also  been  taken  as  evi- 
dence of  due  notice ;  but  it  was  probably  so  held  upon  the 
ground  that  such  acknowledgment  was  equivalent  to  a 
promise  to  pa}^  what  was  admitted  to  be  due.''  In  Chap- 
man V.  Annett,^  however,  it  was  expressly  decided,  where 
the  drawer  of  a  bill  defended  against  a  subsequent  party, 
upon  the  ground  that  he  had  not  received  due  notice  of  the 

1  Hussey  v.  Freeman,  10  Mass.,  84. 

-  Lawrence  v.  Ralston,  3  Bibb,  102 ;  Donolly  v.  Howie,  Hayes  &  J.,  436 ; 
Huntington  v.  Harvey,  4  Conn.,  124. 

3  Jones  V.  O'Brien,  26  E.  L.  &  Eq.,  283;  Rogers  v,  Hackett,  21  N.  H., 
100. 

nCarr.  &  Kir.,  552. 


516  NOTICE   OF   DISHONOR   OF   COMMERCIAL   PAPER. 

dishonor  of  the  bill,  that  a  promise  by  such  drawer,  after 
the  dishonor  of  the  bill,  to  pay  the  same,  did  not  amount  to 
an  admission  of  notice,  but  might  waive  it. 

§968.  Eyen  Written  Admission  Not  Conclusive. —  It 
has  also  been  held  that  even  a  written  admission  by  the 
indorser,  of  due  notice,  or  of  liabihty  on  his  indorsement, 
after  dishonor,  is  not  conclusive  upon  the  party  making  it.' 

§  969.  Subsequent  Promise  Either  Waiver  or  Admis- 
sion.—  In  Tebbetts  v.  Dowd,-  Judge  Cowen,  in  pronouncing 
the  opinion  of  the  court,  lays  down  the  doctrine  that  a 
subsequent  promise,  made  with  knowledge  of  laches  of  the 
holder  in  neglecting  to  give  notice,  would  amount  to  a 
waiver  of  such  notice.  In  this  case,  the  judgment  of  the 
court  below  is  also  sustained,  on  the  ground  that,  no  laches 
appearing  in  the  proof,  the  promise  or  other  equivalent  act 
of  the  drawer  or  indorser  should  be  received  2js,  ^rima  facie 
evidence  of  due  notice.  In  so  deciding  this  case,  the  earlier 
case  of  Trimble  v.  Thorn,^  where  a  different  doctrine  was 
announced,  was  expressly  overruled. 

§  970.  Onus  Probamli. —  This  brings  us  to  the  consid- 
eration of  the  question  of  the  onus  probandi^  when  the  con- 
troversy is  between  two  parties  to  a  note  or  biU,  the  prior 
of  whom  has  not  been  duly  notified  of  the  dishonor  of  the 
instrument,  and  the  subsequent  party  seeks  to  hold  him 
upon  his  promise  made  after  dishonor.  Primarily,  as  to 
the  question  of  notice,  the  burden  of  proof  rests  upon  the 
party  who  seeks  to  charge  the  other.  But  when  there  has 
been  a  promise  to  pay,  or  other  act  of  the  prior  party  by 
which  it  is  claimed  that  notice  is  waived  after  dishonor,  the 
authorities  are  by  no  means  agreed  as  to  whether  the  subse- 
quent party  shall  be  required  to  prove  that  the  promise  was 
made  with  knowledge  of  the  laches,  or  the  burden  shall  rest 
upon  the  party  claiming  to  be  discharged  by  the  failure,  of 


1  Commercial  Bank  v.  Qark,  28  Vt.,  335;  Stix  v.  Mathews,  63  Mo.,  371. 

2  23  Wend.,  879.    See,  also.  Breed  v.  HiUhouse,  7  Conn.,  533. 
316  Johns.,  153. 


"WAIVER   AND    EXCUSE.  517 

proving,  not    only  the  neglect  or  omission,  but  his  own 
ignorance  of  such  fact  at  the  time  of  the  promise. 

§  971.  Subsequent  Promise  Prima  Facie  Evidence  of 
Diligence. —  In  Tebbetts  v.  Dowd,'  the  onus  seems,  by  the 
subsequent  promise,  to  be  shifted  from  the  holder  to  the  in- 
dorser.  If  the  promise  to  pay  is  j^ri'mayacz^  evidence  of 
due  diligence  on  the  part  of  the  holder,  it  relieves  the  latter 
of  proving  in  the  first  instance  a  fact  upon  which  the  liabil- 
ity of  the  indorser  is  clearly  dependent. 

§972.  Evidence  of  Knowledge  of  Laches. —  In  Loose 
V.  Loose,^  it  was  decided  that  a  subsequent  promise  to  pay 
would  raise  a  presumption  that  the  drawer  or  indorser  by 
whom  the  promise  was  made  was  cognizant  of  the  laches  of 
the  holder,  which  his  promise  was  alleged  to  have  waived. 
The  judge  who  rendered  the  opinion  in  this  case  cites  with 
approval  the  case  of  Tebbetts  v.  Dowd,  where,  as  we  have 
already  seen,  the  promise  was  regarded  as  lyrima  facie  evi- 
dence that  there  had  been  due  notice  of  the  dishonor.  It 
is  difficult  to  understand  how  the  same  fact  may  raise  a  pre- 
sumption of  two  antecedent  facts  so  utterly  inconsistent 
with  each  other,  as  that  notice  was  duly  given  by  the  holder, 
and  that  the  indorser  had  full  knowledge  that  the  holder 
had  failed  to  give  due  notice. 

§  973.  Onus  Cast  Upon  the  Holder.— On  the  other 
hand,  it  has  been  decided  that  in  all  instances  the  holder 
assumes  the  burden  of  proving  notice,  or  such  promise  or 
other  conduct  of  the  indorser  as  would  amount  to  a  waiver 
of  notice.'' 

§  974.  Principles  Governing  the  Question.— There  may 
be  cases  in  Avhich  it  would  be  more  equitable  to  require  the 
proof  of  neghgence  to  be  made  by  the  indorser  who  has 

123  Wend.,  379. 

2  36  Pa.  St.,  538.  See,  also,  Chitty  on  B.,  500;  3  Kent's  Com.,  113; 
Nash  V.  Harrmgton,  1  Aik.,  49;  Dorsey  v.  Watson,  14  Mo.,  59^  Walker 
V.  Laverty,  6  Munf.,  487. 

3  Walker  v.  Rogers,  40  HI.,  278;  United  States  Bank  v.  Soutliard,  17 
N.  J.  Law,  473. 


518  KOTICE    OF    DISIIOXOK    OF    COMMERCIAL   PAPER. 

promised  to  pay  the  note  after  its  dishonor.  There  may  bo 
others  where  the  promise  fairly  raises  a  presumption  that 
there  has  been  no  negligence  on  the  part  of  the  promisee. 
But  when  we  consider  the  importance  of  uniformity  in  the 
rules  governing  transactions  in  commercial  paper,  and  that 
the  notice  by  a  holder  to  ^  an  indorser  has  come  to  be  con- 
sidered as  one  of  the  most  important  steps  in  fixing  the  lia- 
bility of  indorsers,  the  exceptional  character  of  the  rules  as 
to  waiver  of  notice,  and  that  the  waiver  is  only  by  implica- 
tion, it  seems  to  be  adding  unnecessarily  to  the  confusion 
by  which  the  cardinal  principles  of  this  important  branch 
of  the  law  have  become  obscured,  to  introduce  an  exception 
to  the  ordinary  rules  of  evidence  by  which  such  cases  have 
been  governed,  in  order  to  give  to  words  spoken  with  such 
a  questionable  intent,  a  scope  so  far  beyond  their  necessary 
meaning.  In  looking  at  the  question  free  from  the  bias  of 
a  particular  case,  it  would  seem  that  the  promise  to  pay, 
subsequent  to  the  dishonor  of  the  note,  would  be  evidence 
of  a  strong  character  that  the  indorser  helieved  that  notice 
had  been  previously  given,  while  the  tendency  of  such 
promise  to  establish  the  correctness  of  that  belief  would  be 
in  some  cases  so  slight  as  to  be  scarcely  appreciable.  The 
sufficiency  of  the  notice  in  point  of  time,  when  governed, 
as  we  have  seen  in  a  former  part  of  this  chapter,^  by  the 
date  of  sending,  and  not  by  the  date  of  its  receipt,  is  a 
matter  the  knowledge  of  which  is  peculiarly  with  the  holder, 
and  not  with  the  indorser.  To  consider  the  promise  as  evi- 
dence of  a  belief  in  the  dihgence  of  the  subsequent  party  in 
giving  notice,  and  to  deny  to  it  the  effect  of  raising  a  pre- 
sumption that  the  holder  had  in  fact  given  due  notice,  is  to 
regard  such  promise  as  but  a  hnk  in  the  chain  of  evidence 
by  which  the  waiver  is  to  be  established,  and  not  as  a  fact  of 
such  importance  as  to  shift  the  onus probandi  with  respect 
to  the  question  of  notice  from  the  shoulders  of  the  holder 
to  those  of  the  antecedent  party.     If  the  holder  fails  to 

lAnfe,  §§793,  821. 


WAIVER   AND   EXCUSE.  510 

prove  due  notice  of  dishonor,  and  merely  proves  a  sub- 
sequent promise,  without  other  evidence  of  knowledge  than 
could  be  inferred  from  the  indorser's  manifest  belief  that  no- 
tice was  given,  it  would  seem  that  instead  of  having  the 
effect  of  charging  the  indorser,  it  points  to  his  discharge  for 
want  of  notice,  and  would  show  that  the  subsequent  promise 
was  made  in  ignorance  of  that  fact. 

§  975.  Knowledge  of  Facts  and  Not  Their  Legal  Effect. 
The  knowledge  of  dishonor  and  of  the  failure  by  the  sub- 
sequent party  to  give  the  requisite  notice,  wlien  brought 
home  to  the  antecedent  party  who  has  promised  to  pay  the 
dishonored  paper,  is  only  requbed  to  be  of  the  facts  in- 
volved in  the  matter,  and  not  of  their  legal  effect.^  And 
the  knowledge  of  facts  may  be  inferred  from  circumstances.' 

§  976.  Excuses  of  a  General  Nature  Enumerated. — 
And  next,  as  to  what  will  constitute  a  sufficient  excuse  for 
the  omission  of  due  notice  of  dishonor.  Judge  Story  enu- 
merates the  excuses  of  a  general  nature  for  failure  to  give 
notice  of  dishonor  of  promissory  notes  as  follows:  "1.  The 
cases  where  notice  is  prevented  by  inevitable  accident,  or 
overwhelming  calamity.  2.  The  prevalence  of  a  mahgnant 
disease,  which  interrupts  and  suspends  the  ordinary  opera- 
tions of  trade  and  business,  3.  Occurrences  of  a  public 
and  pohtical  character,  which  interrupt  or  stop  the  couree 
of  the  trade  and  business,  such  as  war,  blockade  of  the 
place,  invasion  or  occupation  by  the  enemy.  4.  The  public 
interdiction  or  prohibition  of  commerce  between  the  coun- 
tries from  which  or  to  which  the  notice  is  to  be  sent. 
5.  The  utter  impracticabihty  of  giving  notice  by  reason  of 
the  party  entitled  thereto  having  absconded,  or  having  no 

iLadd  V.  Kenney,  2  N.  H.,  340;  Duryee  v.  Dennison,  5  Johns.,  248; 
Donaldson  v.  Means,  4  Dall.,  109;  Miller  v.  Hackley,  5  Johns.,  375;  Grif- 
fin V.  Goff,  12  Johns.,  423;  Stevens  v.  Lynch,  12  East,  38;  Porter  v. 
Rayworth,  13  East,  417;  Lundie  v.  Robertson,  7  East,  231;  Bilbie  r. 
Lumley,  2  East,  469;  Hopley  v.  Dufresne,  15  East,  275,  Contra,  Warder 
V.  Tucker,  7  Mass.,  449. 

-Givens  v.  Merchants'  National  Bank,  85  111.,  442.  See  Metz  v.  Osborn, 
5  Mo.,  546;  Dorsey  v.  Watson,  14  Mo.,  62. 


520  NOTICE    OF    DISHONOR    OF    COMMERCIAL    PAPER. 

fixed  place  of  residence,  or  his  place  of  residence  or  busi- 
ness being  unknown,  and  incapable  of  being  ascertained 
upon  reasonable  inquiries."  ^ 

§  977.  Excuses  of  a  Special  Character. —  Excuses  of  a 
special  and  peculiar  nature  are  enumerated  as  follows: 
"  1.  That  the  note  was  given  for  the  accommodation  of  the 
indorser  only,  and  that  he  has  the  sole  interest  in  the  pay- 
ment, and  must  ultimately  pay  the  same.  2.  An  original 
agreement  on  the  part  of  the  indorser,  made  with  the  maker 
or  other  party,  at  all  events  to  pay  the  note  at  its  maturity 
to  the  holder.  3.  The  receiving  of  a  security  or  indemnity 
from  the  maker  or  other  party  for  whose  benefit  the  note  is 
made,  by  the  indorser,  to  secure  him  for  his  liability  thereon. 
If  the  security  be  to  the  full  amount  of  the  note,  the  in- 
dorser will  be  held  liable,  without  notice,  for  the  full  pay- 
ment of  the  note.  If  the  security  be  partial,  he  will  be 
bound  'j)ro  tanto.  4.  A  fortiori^  the  receiving  money  from 
the  maker  or  other  party  for  whose  benefit  the  note  was 
made,  to  take  up  and  pay  the  note.  5.  Receiving  the  note 
as  collateral  security  for  another  debt  where  the  debtor  is 
no  party  to  the  note,  or,  if  a  party,  has  not  indorsed  it. 
6.  An  original  agreement  by  the  indorser  to  dispense  with 
the  necessity  of  notice,  or  to  be  bound  without  notice.  As 
if  the  indorser,  before  the  note  becomes  due,  agrees  to  pay 
it  in  consideration  of  time  being  given  to  him,  such  a  prom- 
ise is  a  dispensation  with  the  necessity  of  presentment  for 
payment  and  of  notice  of  the  dishonor.  7.  An  order  or 
direction  from  the  indorser  to  the  maker  not  to  pay  the 
note  if  it  be  presented  at  its  maturity,  for  this  plainly  will 
dispense  with  notice  of  the  dishonor,  since  it  is  procured  by 
the  indorser's  own  act,  although  it  will  not  dispense  with 
the  presentment  of  the  note  for  payment."  ^  Many  of  the 
matters  enumerated  above  as  excuses  of  a  special  nature 
have  been  considered  as  amounting  to  waiver  of  notice.^ 

1  Story  on  Prom.  Notes,  §§  258,  259,  356;  Story  on  B.,  §§  308,  309. 

2  Story  on  Prom.  Notes,  §§  293,  357 ;  Chitty  on  BiUs,  500  (9th  Lond.  Ed.)- 

3  Supra,  §  933,  et  seq. 


WAIVER    AND    EXCUSE.  521 

§  978.  Inevitable  Accident.— Inevitable  accident  will 
excuse  notice  vrhen  the  happening  of  the  event  is  be3'ond 
the  control  of  the  jDarty  charged  with  the  duty  of  giving 
notice,  although  the  accident  may  have  resulted  from  the 
negligence  of  a  stranger.  As  where,  throngii  a  mistake  of 
the  postmaster,  the  bill  failed  to  reach  the  agent  authorized 
to  present  it  for  payment,  until  the  day  following  the  date 
of  its  maturity,  it  was  held  that  notice  given  as  soon  as  pos- 
sible after  presentment  would  be  sufficient.^ 

§  979.  Prevalence  of  Malignant  Fever. —  The  prevalence 
of  a  malignant  fever  in  New  York,  that  being  the  place  of 
payment,  by  which  the  transaction  of  business  was  inter- 
rupted, was  held  to  be  sufficient  to  excuse  delay  in  giving 
notice,  which  was  due  in  September,  until  the  following 
j^ovember.2 

§  980.  Existence  of  War. —  The  existence  of  war  is  ac- 
cepted as  an  excuse  for  failure  to  present  for  acceptance  or 
demand  payment  and  give  notice  of  dishonor,  where  war 
has  been  formally  declared  between  the  belligerent  nations, 
before  the  inception  of  the  bill  or  note,  for  the  reason  that 
all  contracts  between  the  subjects  of  nations  at  war  with 
each  other  are  void.^ 

§  981.  Interdiction  of  Commerce. —  So,  when  the  instru- 
ment matures  after  the  commencement  of  hostilities  and 
the  interdiction  of  commerce  between  the  two  countries, 
though  it  may  have  been  made  or  drawn  prior  to  the  com- 
mencement of  the  war,  the  want  of  demand  and  notice 
would  be  excused.^ 

§982.  Actual  Hostilities.— The  prevalence  of  actual 
hostilities,  however,  not  only  has  the  effect  to  excuse  the 
giving  of  notice,  because  of  the  illegality  of  such  business 

1  Windham  Bank  v.  Norton,  22  Conn.,  213. 

-Tunno  v.  Lague,  2  Johns.  Cos.,  1. 

3  United  States  v.  Grossmayer,  9  Wall.,  72;  Harden  v.  Boyce,  59  Barb., 
425;  Willison  v.  Pattison,  7  Taunt.,  439;  Potts  v.  Bell,  8  T.  R.,  548. 

< Leathers  v.  Commercial  Ins.  Co.,  2  Busli,  296;  Hopkirk  v.  Page,  2 
Brock.,  20;  Griswold  v.  Waddington,  15  Jolms.,  57;  Scofield  v.  Eichel- 
berger,  7  Pet.,  586;  Story  on  Prom.  Notes,  ^  263. 


522*  NOTICE    OF   DISHONOR   OF    COMMERCIAL   PAPER. 

intercourse  between* the  subjects  of  the  belligerents,  but  be- 
ca^use  of  the  obstruction  to  the  means  of  communication, 
Avliich  renders  either  the  presentment  or  the  giving  of  notice 
practically  impossible,  dangerous  or  extremely  inconven- 
ient.^ 

§  983.  Late  War. —  This  doctrine  has  been  frequently  ap- 
plied to  cases  arising  during  the  late  civil  war  in  this  country, 
and  it  was  decided,  in  several  instances,  that  during  the 
continuance  of  such  war,  and  especially  after  the  issuance 
of  the  president's  interdict,  all  commercial  intercourse  be- 
tween the  people  of  the  states  remaining  loyal  to  the 
national  government  and  those  in  insurrection  was  sus- 
pended, and  omissions  to  give  due  and  regular  notice  of  the 
dishonor  of  commercial  paper  between  them  was  held  ex- 
cused, either  on  account  of  the  difficulties  of  intercom- 
munication or  the  prohibitory  order  of  the  president,  or  by 
reason  of  both  such  facts.- 

§  984.  Interrui)tioii  of  Postal  Commumcatioii.  —  When 
notice  is  given  by  sending  a  written  communication  through 
the  postoffice,  addressed  to  the  party  to  be  notified,  at  his 
residence,  within  the  other  belligerent's  territory,  or  at  a 
point  between  which  and  the  place  of  dishonor  there  is  no 
postal  communication,  which  has  been  suspended  by  reason 
of  the  disturbed  condition  of  the  country,  such  notice  will 
not  operate  to  charge  the  party  so  notified,  b}^  converting 
his  conditional  liability  into  an  absolute  one.* 

§985.  War  Where  Note  Payable. — ^The  existence  of 
war  in  the  country  where  the  bill  or  note  is  to  be  presented 
for  pa3"ment  or  acceptance,  although  all  the  parties  be  resi- 
dents of  such  country,  will  excuse  the  failure  to  give  notice, 

lApperson  v.  Bynum,  5  Coldw.,  341;  Patience  v.  Townley,  2  J.  P. 
Smith,  223;  Story  on  Prom.  Notes,  §  261. 

-' House r,  Adams,  48  Pa.  St.,  261;  Woods  v.  "Wilder,  43  N.  Y.,  164; 
Berry  v.  Soutliern  Bank  of  Ky.,  2  Dev.,  379;  Bell  v.  Hall,  id.,  288;  Bell- 
gerry  v.  Branch,  19  Gratt.,  393;  Hayden  v.  Boyce,  59  Barb.,  425;  Polk 
V.  Spinks,  5  Coldw.,  431. 

3  James  v.  Wade,  21  La.  An.,  548;  Burden  v.  Smith,  44  ]\Iiss.,  548; 
Shaw  V.  Neal,  19  La.,  156. 


WAIVEE   AND   EXCUSE.  523 

when,  by  reason  of  the  existence  of  such  war,  tnere  is  a 
mihtary  occupation  of  the  country  which  obstructs  inter- 
course between  the  parties  to  the  note  or  bill.^ 

§  986.  Not  Excused  if  Intercourse  Legal. —  It  has  been 
held  that  unless  it  was  apparent  that,  at  the  time  of  the 
protest,  there  w^as  such  obstruction  to  communication  that 
the  notice  could  not  have  been  sent,  if  prior  to  the  presi- 
dent's interdict,  the  intercourse  was  not  illegal,  and  notice 
was  not  excused.^ 

§  987.  Loss  of  Note  toy  War,  No  Excuse.— Nor  wnll  the 
mere  fact  that,  as  one  of  the  casualties  of  war,  the  note  has 
been  lost  or  removed  beyond  the  reach  of  the  legal  holder, 
be  suflBcient  to  excuse  notice.  The  loss  or  absence  of  the 
note,  when  occasioned  by  war,  will  f  m'nish  no  better  excuse 
for  a  failure  to  present  and  give  notice  of  dishonor  than  any 
similar  casualty  which  is  the  effect  of  any  other  cause.  So, 
where  the  notes,  being  held  by  a  bank  in  Memphis,  were,  by 
the  order  of  the  commander  of  the  Confederate  forces,  re- 
moved south  about  the  20th  day  of  May,  18G2,  and  remained 
south  until  the  close  of  the  w^ar  in  1865,  it  was  held  that 
the  protest  w^hich  took  place  July  IT,  1865,  and  notice  thereof 
given  to  an  indorser,  w^ho,  together  with  the  officers  of  the 
bank,  had  resided  in  the  city  of  Memphis  throughout  the 
war,  would  not  be  effectual  to  fix  the  liabihty  of  such  in- 
dorser, who  was  discharged  by  the  laches  of  the  bank  offi- 
cers.^ 

§  988.  Entitled  to  Notice  When  Obstruction  Removed. 
Where  notice,  which  otherwise  should  be  sent  by  mail,  is 
interrupted  by  a  state  of  war  between  the  countries  in 
which  the  prior  and  subsequent  parties  are  respectively  resi- 
dent, or  in  either  of  such  countries,  it  is  not  to  be  under- 
stood that  notice  is  thereby  finally  dispensed  with.  Upon  a 
cessation  of  the  Avar,  or  the  removal  of  other  similar  obsta- 

1  Peters  v.  Hobbs,  25  Ark.,  67;  Dunbar  v.  Tyler,  44  Miss.,  1;  Farmei-s' 
Bank  of  Va.  v.  Gunnel,  26  Gratt.,  131 ;  Tardy  v.  Boyd,  id.,  631. 

2  National  Bank  v.  Marr,  6  Bush  (Ky.),  614. 

3  Apperson  v.  Union  Bank,  4  Coldw.,  445. 


524  NOTICE    OF   DISHONOE   OF    COMMERCIAL   PAPER. 

cles  to  the  regular  communication  by  mail,  the  prior  party 
becomes  entitled  to  notice,  and  it  should  be  sent  as  soon  as 
practicable.' 

§  981).  Party  Not  Required  to  Yiolate  Law  of  His  Domi- 
cile.—  Excuse  founded  upon  the  public  interdiction  and 
prohibition  of  commercial  intercourse  has  been  sufficiently 
illustrated  by  examples  from  the  authorities  cited  with  re- 
spect to  war  between  the  countries  in  which  the  different 
parties  reside.  War  furnishes  the  most  familiar,  if  not  the 
only,  instance  where  commerce  between  different  countries 
is  interdicted.  But  one  of  the  reasons  for  the  excuse  would 
be  the  same  where  intercourse  was  prohibited  in  time  of 
peace,  as  no  subject  or  resident  of  any  country  can  be  com- 
pellable to  do  an  act  which  violates  the  law  of  his  domicile, 
in  order  to  protect  rights  which  he  is  not  otherwise  at  hb- 
erty  to  enforce.^ 

§  990.  Due  Diligence. — All  that  is  required  of  the  holder, 
in  giving  notice  to  prior  parties  of  the  dishonor  of  a  bill  or 
note,  is  the  exercise  of  diligence  in  making  inquiry  for  the 
residence  or  place  of  business  of  the  party  to  be  notified, 
and  if,  after  proper  inquiries,  such  place  cannot  be  ascer- 
tained, or  if  the  indorser  has  absconded,  or  concealed  him- 
self, or  has  no  regular  place  of  residence  or  business,  notice 
will  not  be  required,  at  least  not  within  the  usual  time.' 

§  991.  Notice  of  Facts  Excusing  Demand. —  But  the 
absconding,  absence  or  insolvency  of  the  maker  of  a  note, 
or  the  acceptor  or  drawer  of  a  bill,  even  when  they  excuse 
presentment  or  demand,  will  not  excuse  notice,  notwith- 
standing such  circumstance  is  known  to  the  indorser  or 


A  Morgan  v.  Bank  of  Louisville,  4  Bush,  83. 

2  Story  on  Prom.  Notes,  §  263. 

» Brighton  Market  Bank  v.  Philbrick,  40  N.  H.,  506 ;  Browning  v.  Kin- 
near,  Gow. ,  81 ;  Baldwin  v.  Richardson,  1  Barn.  &  Cres. ,  245 ;  Fii-th  v. 
Thrush,  8  id.,  387;  Peet  v.  Zanders,  6  La.  An.,  364;  Bateman  v.  Joseph, 
2  Camp.,  461;  Garver  v.  Downies,  33  Cal.,  176;  Lambert  v.  Ghiselin,  9 
How.,  552;  Chapman  v.  Lipscombe,  1  Johns.,  294;  Hunt  v.  Maybee,  7 
N.  Y.,  266. 


WAIVER    AND    EXCUSE.  525 

other  prior  party  to  be  aflfectecl  by  the  notice.'  The  indorser 
or  drawer  is  as  clearly  entitled  to  notice  of  facts  which  ex- 
cuse presentment  for  acceptance  or  demand  of  payment  as 
he  is  to  notice  of  dishonor.^ 

§  992.  Obstructions  Removed  —  Demand  and  Notice. — 
ISTevertheless,  where  the  facts  are  sufficient  to  excuse  delay 
in  presenting  the  bill,  the  notice  may,  in  some  instances  at 
least,  be  effectually  given  after  the  obstruction  is  removed 
and  the  presentment  or  demand  is  made ;  as  where  the  sick- 
ness or  death  of  the  holder  intervenes  to  prevent  the  de- 
mand being  made  at  maturity.  It  was  accordingly  held 
that  the  sickness  of  the  holder  of  a  bill  payable  three  days 
after  sight  would  be  excused  for  failing  to  present  the  bill 
Avithin  such  time  as  would  otherwise  be  deemed  reasonable.'' 

§  993.  Death  of  Holder.— Where  the  holder  died  before 
the  maturity  of  the  note,  and  his  executor  proved  the  will 
within  a  month  after  the  maturity  of  the  note,  but  immedi- 
ately thereafter  relinquished  his  trust  as  executor  without 
having  qualified  as  such,  and  his  successor  in  the  adminis- 
tration found  the  note  among  the  papers  of  deceased  a  week 
after  he  received  them,  presented  it  next  day,  and  notified 
the  indorser  the  day  after  of  the  dishonor,  it  was  held  that 
the  notice  of  dishonor  was  given  within  a  reasonable  time.* 

§  994.  Sudden  Sickness  and  Death  of  Agent.—  The  sud- 
.den  sickness  and  death  of  an  agent  of  the  holder,  who  had 
the  note  in  his  possession,  has  also  been  accepted  as  an  ex- 
cuse for  delay.^    In  this  case  the  holder  was  not  aware  of 

iFarnum  v.  Towle,  12  Mass.,  92;  Denny  v.  Palmer,  5  Iredell,  610;  May 
V.  Coffin,  4  Mass.,  3-41;  Nash  v.  Harrington,  2  Aikens,  9;  Russell  r. 
Langstaflfe,  Dougl.,  495;  Smith  v.  Beckett,  13  East,  187;  Esdaile  v.  Sow- 
erby,  11  id.,  114;  Pons  v.  Kelley,  2  Hayw.,  45;  Warrington  v.  Furbor, 
8  East,  242;  Nicholson  v.  Goutliit,  2  H.  Bl.,  609;  Rhode  v.  Proctor,  4  B. 
&  C,  517;  Thackery  v.  Blackett,  3  Camp.,  164;  Lafitte  v.  Slatter,  6 
Bing.,  623. 

2  Price  V.  Young,  1  M'Cord,  339;  Taylor  v.  Snyder,  3  Den.,  145. 

*  Aymar  v.  Beers,  7  Cow.,  705. 

4  White  V.  Stoddai-d,  11  Gray,  258. 

5  Duggan  V.  King,  Rice,  1339. 


526  NOTICE    OF   DISHONOR    OF    COMMERCIAL   PAPER. 

the  notes  being  in  the  possession  of  his  agent  at  the  time  of 
his  decease,  and,  as  soon  as  it  was  discovered,  demand  was 
made  and  notice  of  dishonor  given.  Under  these  circum- 
stances, a  notice  Avhich  otherwise  shoukl  have  been  given 
on  the  15th  day  of  May  was  held  to  be  in  due  time  when 
given  on  the  8th  of  the  following  June. 

§  9t)5.  Sickness  Must  he  Sudden  and  Severe. —  Sickness, 
however,  will  only  be  sufficient  excuse  for  negligence  in 
making  demand  and  giving  notice  of  non-pa3'ment,  when  it 
appears  to  have  been  so  sudden  and  severe  as  to  prevent 
the  holder,  or  agent  who  has  possession  of  the  instrument, 
from  presenting  the  same,  or  employing  another  to  do  so  in 
his  stead.  ^ 

§  996.  Special  Excuses  Treated  as  Waiver. —  The  clas- 
sification and  enumeration  of  excuses  of  a  special  nature  as 
laid  down  by  Judge  Story-  cannot  be  followed  here  without 
a  great  deal  of  useless  repetition,  for  the  reason  that  most 
of  the  matters  there  given  by  the  learned  author  as  excusing 
notice,  we  have  already  presented  as  matters  of  waiver.^ 

§  997.  Bill  Drawn  for  Benefit  of  Drawer. —  Koticemay 
be  excused  by  the  fact  that  the  bill  or  note  was  drawn  or 
made  for  the  benefit  of  the  drawer,  maker,  or  indorser,  who 
would  otherwise  be  entitled  to  notice.  It  was  accordingly 
held  that  where  the  bill  was  drawn  and  accepted  for  the 
benefit  of  the  drawer,  there  was  no  necessity  of  giving  him 
notice  of  its  dishonor,  as  the  duty  was  incumbent  upon  him 
to  take  care  of  the  bill.^ 

§  998.  Note  for  Accommodation  of  Payee. —  Even 
where  the  maker  of  the  note  was  really  indebted  to  the 
payee,  but  the  note  was  made  for  the  accommodation  of 
the  payee,  who  indorsed  it,  and  promised  the  indorsee  that 

1  Wilson  V.  Senier,  14  Wis.,  380. 

'^  Supra,  §  977. 

^Stipra,  §§  933,  934  et  seq. 

*  N.  O.  Sav.  Bank  v.  Hari^er,  12  Eob.  (La.),  231 :  Ross  v.  Bedell,  5 
Duer,  462 ;  Barbaroux  v.  Waters,  3  Mete.  (Ky.),  304 ;  Sharp  v.  Bailey,  9 
Barn.  &  Cres.,  44;  Ex  parte  Heath,  2  Ves.  &  B.,  240. 


WAIVER   AXD    EXCUSE.  527 

he  would  take  care  of  it,  he  was  not  entitled  to  notice  of  dis- 
honor.^ 
§  999.  For  Accommodation  of  Drawee  or  Acceptor.— 

But  where  the  bill  is  drawn  for  the  accommodation  of  the 
drawee  or  acceptor,  the  rule  is  quite  different.  Being  drawn 
for  the  benefit  of  the  party  to  whom  the  holder  is  directed 
for  payment  in  the  first  instance,  in  case  of  failure  on  his 
part  to  meet  the  obligation  when  presented,  for  whatever 
reason  that  does  not  involve  the  interference  of  the  prior 
party,  such  prior  party  is  entitled  to  notice.^ 

§  1000.  Not  Excused  l)y  Promise  of  Drawer  to  Provide 
for  Bill. —  The  English  courts  seem  ver}^  jealous  of  en- 
croachments upon  the  general  rule  requiring  notice  to  prior 
parties  of  the  dishonor  of  commercial  paper.  Lord  Kexyon, 
in  Staples  v.  Okines,'  where  the  drawee  was  in  debt  to  the 
drawer  above  the  amount  of  the  bill,  but  had  informed  the 
drawer  that  he  could  not  meet  the  bill,  and  it  was  under- 
stood between  them  that  the  drawer  should  provide  for  it 
in  case  it  was  not  paid,  it  was  held  that  •  the  drawer  Avas 
nevertheless  entitled  to  notice.'' 

§  1.001.  ^0  Fimds  ill  the  Hands  of  Drawee. —  It  is  fre- 
quently urged  as  an  excuse  for  the  want  of  notice  of  dis- 
honor of  bills  of  exchange,  that  when  the  draft  is  drawn 
the  drawee  has  no  funds  in  his  hands  which  belong  to  the 
drawer,  and  as  a  consequence  the  drawer  cannot  be  injured 
b}^  the  omission.  The  earliest  reported  case  in  which  this 
rule  is  laid  down,  and  which  seems  to  be  followed  as  an 
authority,  is  that  of  Bickerdike  v.  Bollman.'^  In  rendering 
the  opinion  Judge  Buller  says:  "The  law  requires  notice 
to  be  given  for  this  reason,  because  it  is  presumed  that  the 

1  Torrey  v.  Foss,  40  Me.,  74. 

'-'  Ex  parte  Heath,  2  Ves.  &  B.,  240;  Bank  of  Seaford  v.  Connoway,  4 
Houst.,  206. 

3  1  Esp.,  332. 

^  This,  however,  has  been  held  differently  in  a  recent  American  case, 
which  seems  to  be  supported  by  the  better  reason.  Harrison  v.  Trader, 
29  Ark.,  85. 

5  IT.  R.,  405,  409. 


528  NOTICE    OF   DISHONOR    OF    COMMERCIAL    PAPER. 

bill  is  drawn  on  account  of  the  drawee's  having  effects  of 
the  drawer  in  his  hands ;  and  if  the  latter  has  notice  that 
the  bill  is  not  accepted,  or  not  paid,  he  may  withdraw  them 
immediately.  But  if  he  has  no  effects  in  the  other's  hands, 
then  he  cannot  be  injured  for  the  want  of  notice."  ^ 

§  1002.  Application  of  the  Rule  Coiiiiiied. —  The  above 
decision  may  be  regarded  as  the  foundation  of  a  rule  which, 
with  the  modifications  found  necessary  in  its  application  to 
cases  where  the  facts  were  different,  has  been  accepted  b}" 
the  courts,  both  American  and  English,  as  based  upon  a  sal- 
utary principle.  Though  there  has  never  been  a  doubt  ex- 
pressed of  the  soundness  of  the  decision  in  the  case  where 
this  doctrine  is  first  distinctly  and  authoritatively  announced, 
some  of  the  English  judges,  in  giving  in  their  adhesion  to 
the  precedent,  apprehending  a  disturbance  of  the  established 
rules  of  the  law  merchant  upon  the  subject  of  notice,  have 
expressed  their  regret  at  what  they  regarded  as  a  dangerous 
departure.-  Viewing  this  as  an  exceptional  case,  when  cited 
as  a  precedent,  the  tendency  has  been  to  confine  its  apphca- 
tion  to  cases  clearly  in  point,  and  not  to  ex'tend  it  to  cases 
possessing  the  single  characteristic  in  common  with  Bicker- 
dike  V.  Bollman,  that  the  drawee  held  no  funds  of  the 
drawer.  In  modifying  the  rule  the  courts  have  also  found 
it  necessary  to  place  it  upon  a  foundation  less  broad  than 
the  mere  fact  that  the  drawer  would  not  be  injured  by  the 
neglect  or  omission  of  the  holder  to  give  notice  of  the  dis- 
honor, as  it  would  open  an  almost  endless  field  of  inquiry, 
if  in  every  case  the  holder  might  go  into  an  elaborate  and 
nice  investigation  of  the  question  whether  the  failure  to  give 
notice  had  been  productive  of  actual  damage  to  the  party 
entitled  thereto  under  the  established  rule. 

§  1003.  American  Cases  Decided  on  Insufficient  Rea- 
son.—  In  some  of  the  American  authorities,  however,  the 
absence  of  injury  to  the  drawer  is  given  as  the  only  reason 

1  See,  also,  Rogers  v.  Stephens,  2  T.  R.,  713;  Gale  v.  Walsh,  5  id.,  239; 
Walwyn  v.  St.  Quintin,  1  Bos.  &  Pul.,  654;  Dickens  v.  Beal,  10  Pet.,  572. 

2  See  cases  cited  infra. 


WAIVEE    AND    EXCUSE.  520 

of  the  exception  to  the  general  rule,  and  it  is  announced 
that  a  failure  to  give  notice  will  not  discharge  the  drawer 
without  funds,  even  where  the  bill  has  been  duly  accepted, 
and  only  dishonored  when  presented  for  payment.^  The 
reasoning  of  most  of  these  cases  is  hardly  satisfactory,  in 
view  of  the  necessity  for  fixed  rules  to  be  apphcd  to  partic- 
ular cases,  without  enlarging  the  scope  of  inquiry  into  facts.' 

§  1004.  No  Right  to  Expect  Payment. —  The  prepon- 
derance of  authority,  both  British  and  American,  is  in  favor 
of  treating  the  absence  of  funds  not  as  sufficient  in  itself 
to  excuse  notice  to  the  drawer,  upon  the  broad  ground 
that  he  is  not  injured  by  the  omission,  but  as  evidence  of 
the  fact  upon  which  the  true  reason  of  the  exceptional  doc- 
trine is  based- — that  the  drawer  had  no  right  to  expect 
"that  the  bill  would  be  accepted  and  paid,  and  hence  its  cir- 
culation by  the  drawer  would  be  either  a  fraud  upon  sub- 
sequent parties,  or  an  indirect  means  of  evidencing  his  own 
indebtedness.- 

§  1005.  Drawer  Against  Goods  in  Transit. —  So,  where 
the  drawer  has  made  or  is  making  a  consignment  of  goods 
to  the  drawee,  and  draws  before  the  consignment  comes  to 
hand,^  if  the  goods  are  in  transitu,  but  there  is  a  failure  to 
send  a  bill  of  lading,  or  the  goods  are  lost ;  if  the  drawer 

1  Hoffman  v.  Smith,  1  Cai.,  160;  Commercial  Bank  v.  Hughes,  17 
Wend.,  94;  Foard  v.  Womack,  2  Ala.,  368;  Shirley  v.  Fellows,  9  Port. 
(Ala.),  300. 

^Rucker  v.  HUler,  16  East,  43;  Norton  v.  Pickering,  8  B.  &  C,  610; 
Cory  u.  Scott,  3  Barn.  &  Akl.,  619;  Walwyn  v.  St.  Quiutin,  1  Bos.  & 
Pul.,  654;  Blackham  v.  Doren,  2  Camp.,  503;  Lord  EUenborough  in 
Brown  v.  Maffey,  15  East,  216;  Legge  v.  Thorpe,  13  id.,  171 ;  Lafitte  v. 
Slatter,  4  Moore  &  P.,  457;  Dickens  v.  Beal,  10  Pet.,  572;  French  v. 
Bank  of  Columbia,  4  Cranch,  141 ;  Louisiana  State  Bank  v.  Buhler,  22 
La.  An.,  83;  Oliver  v.  Bank  of  Tennessee,  11  Humph.,  74:  Kinsley  i*. 
Robinson,  21  Pick.,  827;  Campbell  v.  Pettengill,  7  Me.,  126;  Hopku-k 
V.  Page.  2  Brock.,  20;  Miser  v.  Trovinger,  7  Ohio  St.,  281;  McRae 
V.  Rhodes,  22  Ark.,  315;  Schuchardt  v.  Hall,  36  Md.,  590;  Farmers' 
Bank  v.  Vanmeter,  4  Rand.,  553. 

3 Oliver  v.  Bank  of  Tennessee,  11  Humph.,  74;  Robins  v.  Gibson,  3 
Camp.,  334. 
34 


530  NOTICE    or    DISnON'OR    OF   COMMERCIAL    PAPER. 

has  any  property  for  sale  in  the  hands  of  the  drawee ;  if 
there  be  a  fluctuating  balance  between  the  drawer  and  the 
drawee,  in  the  course  of  their  transactions ;  if  the  drawee 
has  been  in  the  habit  of  accepting  the  bills  of  the  drawer, 
without  regard  to  the  state  of  their  accounts,  or  the  drawer 
has  a  reasonable  expectation  that  the  bill  will  be  accepted 
or  paid,  the  transaction  cannot  be  denominated  a  fraud,  and 
the  drawer  is  entitled  to  notice.^ 

§  1006.  Opinion  of  Marshall. —  In  Ilopkirk  v.  Page,- 
there  was  a  balance  in  the  drawee's  hands,  amounting  to 
IGs.  lid.,  and  the  draft  was  for  £246  3^.  7d.,  with  no  expec- 
tation, which  seemed  to  have  any  reasonable  grounds,  that 
the  bill  would  be  paid;  it  was  held,  by  Chief  Justice  Mar- 
shall, that  notice  was  unnecessary.  "  The  sound  sense  and 
justice  of  the  exception,"  said  the  learned  judge,  "  is  that 
where  a  drawer  knows  that  he  has  no  right  to  draw,  and 
has  the  strongest  reason  to  believe  his  bill  will  not  be  paid, 
the  motives  for  requiring  notice  do  not  exist,  and  his  case 
comes  within  the  reason  of  the  exception.  Where  all  trans- 
actions between  parties  have  ceased,  and  there  is  nothing 
to  justify  a  draft  but  a  balance  of  one  penny,  it  would  be 
sporting  with  our  understanding  to  tell  us  tliat  a  creditor 
for  this  balance,  who  should  draAv  for  a  thousand  pounds, 
would  be  in  a  situation  substantially  different  from  what  he 
would  be  in  were  he  the  debtor  in  the  same  sum." 

§1007.  Illnstration. —  An  example  of  a  draft  without 
reasonable  expectation  of  payment  is  where  the  drawer 
was  engaged  in  executing  a  contract,  through  an  agent  in  a 
distant  city,  and  the  drawee  acted  as  his  trustee  to  receive 
the  money  to  be  paid  on  the  contract,  and  pay  it  out  on  the 
drawer's  order.  The  drawee  had  written  the  other  party, 
urging  the  completion  of  the  work,  and  advising  him  that 
no  further  money  would  be  paid  until  the  work  was  all  fin- 
ished. The  draft  was  drawn  subsequent  to  this  advice,  and 
it  Avas  held  that  notice  was  unnecessary.* 

1  Dickens  v.  Beal,  and  other  cases  cited  in  note  to  §  1004. 

-  2  Brock.,  20.     See,  also,  Blankenship  v.  Rogers,  10  Ind,,  333. 

3  Wollenweber  v.  Ketterlinus,  17  Pa.  St.,  389. 


WAIVER   AND    EXCUSE.  531 

§  1008.  Mere  Existence  of  Credit.—  So  the  mere  fact  of 
the  existence  of  a  credit  in  the  drawer's  favor  will  not  always 
furnish  reasonable  grounds  for  expecting  that  the  biU  will 
be  paid.  As  where  the  drawer  had  supplied  the  draw^ee 
with  goods  on  a  credit,  which  did  not  expire  until  long  after 
the  maturity  of  the  bill,  and  had  no  funds  in  the  hands  of 
the  drawee,  and  no  further  reason  to  anticipate  the  payment 
of  the  bill,  it  was  held  that  he  was  not  entitled  to  notice  of 
protest.^ 

§  1009.  Expectation  of  Payment  Must  Continue  to  Ma- 
turity.—  It  is  not  sufficient  to  discharge  a  drawer  who  has 
not  received  notice  of  dishonor,  that  at  the  time  the  bill 
was  drawTi  he  had  sufficient  funds  to  meet  it  in  the  hands 
of  the  drawee,  or  had  good  reason  to  anticipate  its  payment. 
The  reasonable  expectation  of  payment  must  continue  down 
to  the  maturity  of  the  bill.  So,  where  the  drawer  of  a  draft 
or  check  withdraws  his  balance  from  the  hands  of  the 
drawee  before  the  bill  matm'es,  or  the  check  is  presented, 
he  is  not  entitled  to  notice  of  non-payment,  as  a  condition 
precedent  to  his  liability.-  But  if,  at  the  maturity  of  the 
bill,  the  holder  have  a  reasonable  expectation  that  it  will  be 
paid,  notice  to  him  cannot  be  dispensed  with,'  although  the 
funds  in  the  hands  of  the  drawee  may  not  be  sufficient  in 
amount  to  pay  the  draft.^ 

§  1010.  Need  Not  be  Anticipated  from  Drawee. —  The 
reasonableness  of  the  expectation  will  not  depend  upon  the 
fact  that  pa}Tnent  is  anticipated  as  coming  directly  from 
the  drawee.  If  he  has  reason  to  believe  that  some  one 
else  will  have  supphed  the  drawee  with  funds  at  the  matu- 
rity of  the  bill,  and  for  a  failure  to  make  such  pro\'ision  the 

1  Qariflge  v.  Dalton,  4  Maul.  &  Sel.,  226. 

-  Pm-chase  v.  Mattison,  6  Duer,  587 ;  Jacks  v.  Darrin,  3  E.  D.  Smith,  557 ; 
Siitcliffe  V.  McDowell,  2  Nott  &  McC,  251;  Lilley  r.  Miller,  id.,  257; 
Eichelberger  v.  Finley,  7  Harr.  &  J.,  381;  Valk  v.  Simmons,  4  Mason, 
113;  Moody  V.  Mack,  43  Mo.,  210;  Momson  v.  McCartney,  30  Mo.,  183; 
Adams  v.  Darby,  28  Mo.,  162 ;  Linville  v.  Welch,  29  id.,  203. 

sLegge  V.  Thorpe,  12  East,  171. 

*  Orr  V.  McGinness,  7  East,  359. 


532  NOTICE   OF   DISHONOK   OF   COMMERCIAL   PAPEK. 

drawer  -would  have  a  right  of  action  against  the  one  so  fail- 
ing, notice  to  the  drawer  would  be  necessary.^ 

§1011.  Promise  from  Drawee. —  Where  the  drawer 
had  received  from  the  drawee  a  promise  to  meet  the  draft, 
if  he  did  nothing  thereafter  to  prevent  the  funds  coming  to 
the  hands  of  the  drawee,  he  might  reasonably  rest  in  the 
belief  that  the  bill  would  be  paid  at  matui'ity,  although  he 
knew  that  the  funds  in  the  hands  of  the  drawee  were  not 
sufiBcient  to  meet  the  draft.^ 

§  1012.  Where  Drawee  Has  Already  Honored  Drafts. — 
So,  where  an  acceptance  was  given  by  a  drawer  upon  a 
drawee,  who  had  already  honored  several  di'afts  from  the 
same  source,  although  he  held  none  of  the  drawer's  funds, 
the  drawer  would  be  entitled  to  notice,  upon  the  ground  of 
reasonable  expectation  of  payment,  provided  the  former 
bills  had  been  honored  without  funds,  and  there  had  been 
no  understanding  between  the  parties  limiting  the  transac- 
tions to  the  prior  acceptances." 

§  1013.  Running  Account  Between  Parties. —  So,  also, 
has  it  been  held  that,  where  there  is  a  running  account 
between  the  parties,  any  sum  whatever  standing  to  the 
credit  of  the  drawer  will  justify  the  expectation  of  payment, 
so  far  as  to  entitle  him  to  notice  of  dishonor.* 

§1014.  Suspecting  Absence  of  Funds,  No  Excuse. — 
Where  the  holder  made  inquiry  of  the  drawee  on  the  day 
preceding  the  day  of  maturity,  and  ascertained  that  funds 
had  not  been  provided  for  the  payment  of  the  bill,  but  was 
informed  by  the  drawer  that  it  was  probable  that  a  sufficient 
amount  would  be  supplied  in  time,  and  on  the  day  of  matu- 
rity the  drawer  saw  the  holder  and  told  him  he  would  see 
what  could  be  done,  it  was  held  that  he  was  entitled  to  due 
notice,  regardless  of  whether  the  funds  were  in  the  hands  of 
the  drawee  or  not.    And  the  holder,  suspecting  the  continued 

1  Brown  v.  Maffey,  15  East,  216;  Lafitte  v.  Slatter,  6  Bing.,  623. 

2  0rear  v.  McDonald,  9  GUI,  350. 

3  Spooner  v.  Gardiner,  Ry.  &  Mood.,  84. 
*HiU  V.  Norris,  2  Stewart  &  P.,  114 


WAIVEE  AND   EXCUSE.  533 

absence  of  cash  to  meet  the  draft,  and  for  that  reason  failing 
to  present  the  same  and  give  notice  of  its  dishonor,  the  drawer 
was  discharged  by  such  omission.^  Had  the  decision  of  this 
case  turned  upon  the  question  whether  the  drawer  was  in- 
jured by  the  neglect  of  the  holder  to  make  presentment  and 
give  notice,  it  would  doubtless  have  resulted  differently. 

§  1015.  Drawer  Being  in  Debt  to  Drawee,  No  Excuse. — 
The  circumstance  that,  according  to  the  mutual  accounts 
between  the  drawer  and  the  drawee,  the  former  is  in  debt 
to  the  latter,  will  not  excuse  notice  of  dishonor,  where  the 
drawer,  notwithstanding  the  fact  that  the  fluctuating  bal- 
ance is  against  him,  has  cash  in  the  hands  of  the  drawer  to 
meet  the  specific  draft.^ 

§  1016.  No  Expectation  of  Funds  at  Place,  No  Ex- 
cuse.—  It  is  no  excuse  that  the  funds  are  not  at  the  place  of 
pa3''ment  designated  in  the  bill,  and  where  such  fact  was 
pleaded  in  excuse,  and  that  there  was  no  reasonable  expecta- 
tion that  the  funds  would  be  there,  it  was  held  insufficient, 
as  there  should  have  been  an  averment  of  no  reasonable 
expectation  of  funds  in  the  hands  of  the  acceptor  or  drawee.' 

§  1017.  No  Excuse  for  Failing  to  Notify  ludorser. — 
The  consideration  of  want  of  funds,  as  an  excuse  for  failure 
to  give  notice  of  dishonor,  is  necessarily  confined  almost  ex- 
clusively to  cases  arising  between  subsequent  parties  to  the 
bill  and  the  drawer.  The  mere  fact  that  the  bill  was  drawn 
or  a  note  made  without  funds  to  meet  it,  or  without  even  a 
shadow  of  reason  to  expect  that  it  would  be  paid  at  matu- 
rity, will  not  excuse  a  failure  to  give  notice  to  an  indorser, 
by  whom  the  bill  has  been  transferred  in  good  faith.* 


iPrideaux  v.  Collier,  2  Stark.,  57. 

2  Blackhan  v.  Doren,  2  Camp. ,  503. 

3  Harwood  v.  Jarvis,  5  Sneed,  o75. 

■4  Wilkes  V.  Jacks,  Peake,  267;  Ramdulollday  v.  Darieux,  4  Wash.  0. 
C,  61 ;  Ealston  v.  Bullitts,  3  Bibb,  261 ;  Scai-borough  v.  Harris,  1  Bay, 
177;  Warder  u.  Tucker,  7  Mass.,  449;  Carter  v.  Flower,  16  M.  &  W., 
743;  Bogy  v.  Keil,  1  Mo.,  743;  Merchants'  Bank  v.  Easley,  44  Mo.,  286; 
Walker  v.  Rogers,  40  111.,  278;  Leach  v.  Hewitt,  4  Taunt.,  731. 


534  NOTICE   OF  DISHONOR   OF   COMMEECIAL   PAPEE. 

§1018,  Accommodation  ludorser. —  And  thoiigli  tlie 
payee  simply  indorses  the  note  to  give  it  currency,  and  with 
full  knowledge  of  the  insolvency  of  the  maker,  he  is  never- 
theless entitled  to  notice  of  non-payment  at  maturity.^ 

§  101  9.  Iiidorser  with  Notice  of  Facts  Excusing. —  But 
an  indorser  of  a  bill  of  exchange,  with  notice  of  such  facts 
as  Avould  be  sufficient  to  excuse  the  want  of  notice  to  the 
drawer,  whether  it  be  that  the  bill  was  drawn  without  funds, 
or  other  circumstance  from  which .  the  drawer  would  have 
no  right  to  anticipate  payment,  would  be  placed  upon  sub- 
stantially the  same  footing  as  the  drawer,  and  whatever 
would  suffice  to  excuse  the  omission  to  notify  the  latter, 
would  be  a  vahd  excuse  in  case  of  an  indorser  with  notice 
of  the  facts.- 

§  1020.  Former  Partnership  Between  Drawer  and 
Drawee,  No  Excuse. —  The  indorsee  and  holder  of  a  bill 
drawn  by  one  upon  a  former  partner,  where  the  partnership 
between  them  had  been  recently  dissolved,  is  not  excused 
from  giving  notice  of  the  dishonor  of  the  bill,  merely  be- 
cause he  had  not  been  notified  of  the  dissolution.  The 
notice  of  dissolution  is  only  necessary  when  the  partner 
professes  to  act  for  the  partnership.  In  this  case  he  pro- 
fessed to  act  for  himself  in  drawing  a  bill  in  his  own  name, 
and  the  erroneous  impressions  of  the  holder,  as  to  the  rela- 
tion subsisting  between  the  drawer  and  the  drawee,  could 
not  be  allo\ved  to  affect  the  rights  of  the  former,  as  a  party 
to  the  biU.» 

§  1021.  Partner  Drawing  Upon  His  Firm,  Not  Entitled 
to  Notice. —  But  though  it  has  been  frequently  decided  that 
the  drawer's  or  indorser's  knowledge  of  the  insolvency  of  the 
maker  or  drawee  of  a  note  or  bill  would  be  no  excuse  for 
failure  to  give  notice  of  its  dishonor,*  the  case  is  quite  dif- 

'  Groton  v.  Dallheim,  6  Me.,  476. 
-Mobley  v.  Clark,  28  Barb.,  390. 
3  Taylor  v.  Young,  3  Watts,  339. 

*  Sussex  Bank  v.  Baldwin,  17  N.  J.  Law,  487;  Lliller  v.  Hackley,  5 
Johns.,  375;  U.  S.  Bank  v.  Southard,  17  N.  J.  Law,  473. 


W'AIVEE   AND    EXCUSE.  535 

ferent  when  the  bill  is  drawn  upon  a  copartnership  by  a 
member  of  the  firm.  There  the  fact  of  insolvency  being 
known  by  the  drawer  at  the  inception  of  the  biU,  has  been 
regarded  as  a  virtual  withdrawal  of  the  funds.^  And  aside 
from  the  question  of  insolvenc}'-,  a  partner  drawing  upon  the 
firm  of  which  he  is  a  member  is  not  entitled  to  notice  of 
dishonor,  as  he  occupies  the  position  on  the  bill  of  drawee, 
as  well  as  drawer.-  For  the  same  reason,  where  a  note  is 
made  by  a  partnership,  in  favor  of  another,  and  is  indorsed 
by  one  who  is  an  active  member  of  both  firms  for  the  payee, 
it  has  been  held  that  notice  of  dishonor  was  unnecessary  to 
bind  the  indorser.* 

§  1022.  Goods  Purchased  for  Use  of  Firm  Will  Not 
Excuse. —  But  where  the  maker  and  the  indorser  of  a  note 
were  partners,  it  was  held  that  the  latter  was  entitled  to 
notice,  although  the  consideration  was  goods  purchased  for 
the  use  of  the  firm  in  the  conduct  of  their  partnership  busi- 
ness.* 

§  1023.  Fraud  hy  Indorser  Excuses  Notice. — Where 
the  holder  of  a  note  made  a  valid  and  binding  contract  of 
extension  with  the  maker,  and  then  transferred  the  note  by 
indorsement  to  a  purchaser  for  value,  before  maturity,  with- 
out notice  of  such  contract  of  extension,  he  was  held,  by 
the  perpetration  of  this  fraud  upon  his  indorsee,  to  have 
rendered  notice  of  dishonor  to  himself,  as  indoi-ser,  unnec- 
essary.^ 

§  1024.  Motives  for  Indorsement  Immaterial. —  The 
motives  by  which  the  indorser  is  actuated  in  becoming  a 
party  to  the  instrument  cannot  affect  his  right  to  notice,  so 
long  as  the  indorsement  is  not  for  his  own  accommodation, 
by  which  he  becomes  the  substantial  maker.     He  may  be  an 

» FuUer  v.  Hooper,  3  Gray,  334. 

^Gfowan  v.  Jackson,  20  Johns.,  176. 

3Dwight  V.  Scovill,  3  Conn.,  654;  West  Branch  Bank  v.  Pulmer,  3 
Pa.  St.,  399. 

*  Foland  v.  Boyd,  23  Pa.  St.,  476. 

5  Williams  v.  Brobst,  10  Watts,  111;  Amoskeag  Bank  v.  Moore,  37  N. 
H..  539. 


536  KOTICE   OF   DISHONOE   OF   COMMERCIAL   PAPER. 

indorser  merely  for  the  accommodation  of  the  maker,  or  he- 
may  expect  to  gain  some  pecuniary  advantage  by  assuming 
the  liability ;  but  neither  of  these  circumstances  will  affect 
his  status  on  the  instrument,  nor  deprive  him  of  the  right  to 
notice  of  dishonor,^ 

§  1025.  Adding  the  Word  "  Surety,"  No  Excuse.— Add- 
ing the  word  "surety"  to  the  indorsement  does  not  divest 
the  party  of  the  character  of  indorser,  and  hence  does  not 
dispense  with  the  necessity  for  notice,  as  would  be  requu-ed 
where  the  indorsement  was  made  without  this  addition.  It 
merely  gives  him  the  advantages  of  the  character  of  surety 
in  addition  to  those  of  indorser.- 

§  1026.  Presence  of  Indorser  When  Payment  Refused, 
No  Excuse. —  The  personal  presence  of  the  indorser  when 
demand  of  payment  was  made  and  the  payment  refused, 
has  been  held  insufficient  to  excuse  a  failure  to  give  notice 
of  dishonor.^ 

'  §  1027.  Attachment  of  Funds,  No  Excuse. —  The  attach- 
ment of  the  funds  in  the  hands  of  the  drawee,  at  the  suit  of 
a  creditor  of  the  drawer,  has  been  held  insufficient  to  excuse 
a  failure  of  the  holder  to  give  the  drawer  notice  of  the  non- 
payment of  a  bill  of  exchange,  notwithstanding  the  notice 
of  attachment,  which  would  bring  to  his  knowledge  cir- 
cumstances calculated  to  render  it  impossible  for  the  drawee 
to  honor  the  draft  at  maturity  without  incurring  the  risk  of 
a  double  liabiUty.* 

§  1028.  Note  Toid  at  Inception,  Notice  Unnecessary. — 
Upon  the  ground  that  the  indorsement  is,  in  addition  to  the 
conditional  undertaking  to  pay,  an  implied  warranty  of  the 
genuineness  of  the  instrument,  it  has  been  held  that  notice 
is  not  necessary  to  bind  the  indorser  of  a  note  which  was 
'Void  at  its  inception.* 

1  Seabuiy  v.  Hungerford,  2  Hill,  80. 

2  Bradford  v.  Corey,  5  Barb.,  461. 

3  Grant  v.  Spencer,  1  Montana,  136. 
*  Stanton  u.  Blossom,  14  Mass.,  113. 

5  Chandler  v.  Mason,  3  Vt.,  193;  Turnbull  v.  Boyer,  40  N.  Y.,  456. 


CHAPTER  XL 

PUBLICATION  OF  NOTICES. 

I.  Original  PROcasss. 
n.  Judicial,  Sales. 

ni.  Non-judicial  Involuntary  Sales. 
IV.  Miscellaneous  Proceedings. 


I.  Oeiginal  Process. 

§  1029.  General  Character  of  Service  by  Publication. 

1030.  Must  Conform  to  Statute. 

1031.  Suits  in  Which  Generally  Employed. 

1032.  Affidavit  or  Declaration. 

1038.  Must  Aver  Jurisdictional  Facts. 

1034.  Should  Allege  Property  Within  State. 

1035.  Must  Aver  Cause  of  Action. 

1036.  Ground  of  Attachment. 

1037.  Attachment  of  Property. 

1038.  Requisites  of  Affidavit  in  New  York. 

1039.  Example  of  Sufficient  Affidavit  in  California. 

1040.  Averment  of  "  Due  Dihgence  "  Held  Sufficient. 

1041.  Difference  in  Statutes. 

1042.  Conclusions  of  Law  Not  to  be  Stated. 

1043.  Expression  of  Opinion  Not  Sufficient. 

1044.  Information  and  Belief. 

1045.  Sufficient  Statement  of  Absence  from  State. 

1046.  Affidavit  Attached  to  Other  Papers. 

1047.  When  Sufficiency  of  Affidavit  Presumed. 

1048.  Not  Impeachable  in  Collateral  Proceeding. 

1049.  Averments  in  Pleading  Same  as  in  Affidavit. 

1050.  Amendment  Not  Allowed  After  PubUcation. 

1051.  Order  of  Publication  and  Notice. 

1052.  Who  to  Make  the  Order. 

1053.  Must  be  by  Designated  Officer. 

1054.  Change  of  Order  Without  Authority. 

1055.  Contents  of  the  Order. 

1056.  Sufficient  Recitals  to  Inform  Defendant. 

1057.  Averment  of  Attachment  in  Notice. 


538  PUBLICATION    OF    NOTICES 

§  1058.  Nature  and  Amount  of  Plaintiff's  Demand. 

1059.  Foreclosure  and  Partition  —  Description. 

1060.  Names  of  Defendants. 

1001.  Unnecessary  to  Designate  Statute. 

1062.  Order  Must  be  Properly  Signed, 

1063.  Should  State  Eeturn  Day. 

1064.  Publication. 

1065.  Newspaper. 

1066.  What  is  Newspaper? 

1067.  ^Published  in  Designated  Paper. 

1068.  Substitute  for  Publication  in  Paper. 

1069.  Full  Time. 

1070.  Computation  of  Time. 

1071.  Tlu-ee  Calendar  Months. 

1072.  Three  Weeks  Successively. 

1073.  Last  Insertion  Four  Weeks  Prior  to  Term. 

1074.  Six  Weeks'  Publication. 

1075.  When  Time  Cannot  be  Shortened. 

1076.  Days,  Weeks  or  Months. 

1077.  Certain  Time,  or  Certain  Number  of  Times. 

1078.  Ten  Publications  in  Ten  Weeks. 

1079.  Two  Weeks  in  Daily  Paper. 

1080.  Proof  of  Publication. 

1081.  To  Satisfaction  of  Court. 

1082.  AiHdavit  Not  Conclusive. 

1083.  Divorce  and  Alimony. 

1084.  Judgment  Binds  Propei-ty. 

1085.  Judgment  Not  Subject  to  Collateral  Attack. 


§  1029.  General  Character  of  Service  by  Publication. 

Publication  is  a  means  authorized  by  statute  in  most,  if  not 
all,  the  states  of  tlie  Union,  for  obtaining  constructive  serv- 
ice of  process,  when  from  the  non-residence,  absence  from 
the  state,  or  absconding  of  the  defendant,  a  more  direct 
mode  of  service  becomes  impracticable.  Service  of  sum- 
mons in  this  manner  is  called  coiistructive,  not  because  the 
publication  in  the  manner  prescribed  by  statute  raises  any 
reasonable  presumption  that  thereby  the  defendant  is  ad- 
vised of  the  pendency  of  the  suit,  for  its  authorization  is 
not  confined  to  cases  where  there  is  even  a  possibility  of  its 
ever  coming  to  the  knowledge  of  the  party  to  be  affected. 
The  defendant  may  have  removed  so  far  beyond  the  con- 


OPwIGIXAL   TROCESS.  539 

fines  of  civilization  that  it  would  he  impossihle  in  the  nature 
of  things  for  the  paper  containing  the  first  insertion  of  the 
notice  to  reach  him  before  the  return  day,  and  it  will  still 
be  as  effective  as  though  the  paper  came  regularly  to  his 
hands. 

§  1030.  Must  Conform  to  Statute. —  As  this  manner  of 
serving  process  depends  for  its  validity  more  upon  its  strict 
conformity  to  the  statute  by  which  it  is  authorized  than 
upon  any  inherent  probability  of  its  conveying  intelligence 
of  the  impending  suit  to  the  party  whose  rights  are  to  be 
affected,  the  fact  that  it  has  actually  come  to  the  knowledge 
of  defendant  cannot  be  shown  to  supply  any  material  devi- 
ation in  the  publication  from  what  the  statute  prescribes. 
The  statute,  being  in  derogation  of  common  law,  is  always 
strictly  construed,  and  it  must  be  shown  affirmatively  that 
its  provisions  have  been  complied  with.^ 

§  1031.  Suits  in  Which  Genenally  Employed. —  Parties 
may  be  effectually  served  by  publication,  in  general,  where 
the  suit  is  brought  by  attachment,  or  to  foreclose  a  mort- 
gage or  deed  of  trust,  or  otherwise  to  directly  affect  the 
title  to  propertjT"  within  the  jmnsdiction  of  the  court.-  This 
manner  of  service  is  also  extensively  used  in  suits  for 
divorce.* 

§  1032.  Affidavit  or  Declaration. — ^The  first  essential 
requisite  to  a  valid  publication  of  original  process  is  the 
affidavit,  return  or  declaration  upon  which  the  order  is 
based.  The  allegations  should  be  distinct  and  unequivocal, 
and  should  show  the  existence  of  a  state  of  facts  such  as 


1  Scorpion  S.  M.  Ck).  v.  Marsano,  10  Nev.,  370;  Likens  v.  McCormick, 
39  Wis.,  313. 

2 People  V.  Huber,  20  Cal.,  81;  Cook  v.  Farren,  34  Barb.,  95;  Lawrence 
V.  State,  30  Ark.,  719;  Gray  v.  Larrimore,  3  Abb.  (U.  S.),  542;  Sexton  v. 
Rhames,  13  Wis.,  99;  Lovejoy  v.  Lunt,  48  Me.,  377;  Zacharie  v.  Bowers, 
3  Sm.  &  M.,  641 ;  Bobb  v.  Woodward,  42  Mo.,  483. 

sjarvis  v.  Barrett,  14  Wis,,  591;  Pomeroy  v.  Betts,  31  Mo.,  419;  Wil- 
son V.  Ladd.  49  Me.,  73. 


510  PUELICATION    OF   NOTICES. 

would  give  tlie  court  or  judge  jurisdiction  to  order  the 
publication.^ 

§  1033.  Must  Aver  Jurisdictional  Facts. —  It  was  ac- 
cordingly held  in  Eastbrook  v.  Eastbrook,^  that  the  affidavit 
should  aver  diligence  in  endeavoring  to  find  the  party  to  be 
served  Tvithin  the  jurisdiction,  and  that  the  court  could  not 
be  satisfied  of  the  existence  of  the  necessary  jurisdictional 
facts  by  the  certificate  of  the  sheriff  that  he  had  reason  to 
believe  that  the  defendant  was  a  non-resident,  or  was  be- 
yond the  jurisdiction  of  the  court. 

§  1034.  Should  Allege  Property  Within  State.— So, 
where  the  affidavit  stated  that  the  defendant  was  a  non- 
resident of  the  state,  but  failed  to  allege  that  he  had  prop- 
erty within  the  state,  it  was  held  insufficient  to  authorize 
the  order  of  pubhcation.* 

§  1035.  Must  Aver  Cause  of  Action. —  So,  also,  has  it 
been  held  that  the  affidavit  should  show,  by  a  sufficient 
statement  of  facts,  the  existence  of  a  cause  of  action  in 
favor  of  plaintiff  and  against  defendant,  and  also  the  nature 
of  such  cause  of  action.^ 

§  1036.  Ground  of  Attachment. —  Where  the  suit  was 
brought  by  attachment,  the  affidavit  was  required  to  state, 
in  addition  to  the  nature  of  the  cause  of  action  between 
the  parties,  the  nou-residence,  departure  from  state,  conceal- 
ment to  avoid  summons,  or  some  one  or  more  of  the  differ- 
ent grounds  for  attachment,  and  a  failure  in  this  respect,  it 
was  held,  would  render  the  judgment  in  pursuance  of  such 
service,  utterly  void.^ 

§  1037.  Attachment  of  Property. —  So,  where  the  affi- 
davit failed  to  allege  that  the  property  of  the  defendant 

iBardsley  v.  Hines,  33  Iowa,  157;  Merrill  v.  Montgomery,  25  Mich., 
73;  SclieU  v.  Leland,  45  Mo.,  289. 

2  64  Barb.,  431.     See,  also,  Waffle  v.  Goble,  53  Barb.,  517. 

3  Spiers  v.  Halstead,  71  N.  C„  209. 
*Claypole  v.  Houston,  13  Kan.,  334. 

sBraley  v.  Seaman,  30  Cal.,  610;  Riley  v.  Nichols,  1  Heisk.  (Term.),  16. 


OEIGIXAL   PROCESS.  541 

had  been  attached  in  the  suit,  the  defect  was  considered 
fatal  to  the  judgment,  as  this  was  a  fact  necessary  to  the 
jurisdiction  of  the  court,' 

§  1038.  Requisites  of  Affldayit  in  New  York.— The 
essential  requisites  of  the  affidavit  for  an  order  of  publica- 
tion under  the  laws  of  the  state  of  New  York,  as  laid  down 
in  Bixby  v.  Smith,-  are:  1.  That  defendant  cannot  after  due 
diligence  be  found  in  the  state.  2.  That  a  cause  of  action 
exists  in  favor  of  plaintiff  and  against  such  defendant,  or 
that  defendant  is  a  proper  party  to  an  action  relating  to 
property  within  the  state.  3.  That  defendant  is  a  non-res- 
ident of  the  state.  And  where  the  affidavit  upon  which  the 
order  was  made  averred  diligence  on  his  part  and  proper 
efforts  to  find  defendant,  but  that  he  could  not  be  found  in 
the  state,  this  was  held  a  sufficient  statement,  as  to  the  non- 
residence  of  the  defendant,  to  warrant  the  issuing  of  the 
order  of  publication." 

§  103«.  Example  of  Sufficient  Affidavit  in  California. 
In  a  case  arising  under  the  California  statute,  it  was 
held,  where  the  affidavit  stated  that  defendant  had  ab- 
sented himself  from  his  place  of  abode  on  the  day  before 
the  commencement  of  the  suit,  informing  his  servant  that  he 
would  return  on  the  following  day,  that  he  could  not  be 
found  by  the  officer,  who  made  diligent  search  for  him,  and 
affiant  believed  that  defendant  concealed  himself  for  the 
purpose  of  avoiding  summons,  and  that  the  claim  sued  on 
AA^as  a  just  debt,  that  this  was  sufficient  to  justify  the  order.* 

§  1040.  Averment  of  Due  Diligence  Held  Sufficient.— 
Where  the  affidavit  stated  that  the  defendant  could  not, 
"  with  due  diligence,  be  found  Avithin  the  state,"  it  was 
hekl  not  defective  for  failing  to  allege  Avith  particularity 

1  Drake  v.  Hale,  38  Mo.,  346;  EUey  v.  Nichols,  1  Heisk.  (Tenn.),  16. 
But  see  Dronillarcl  v.  Wliistler,  29  Ind.,  552,  where  it  is  held  that  the 
affidavit  need  not  mention  the  attachment. 

249  How.  Pr.,  50;  S.  C,  5  Thompson  &  C,  281. 

3  Simpson  v.  Bm-ch,  6  Thomp.  &  C.  (N.  Y.),  560;  S.  C,  4  Hun,  315. 

*Seaver  v.  Fitzgerald,  23  Cal.,  85. 


542  PUBLICATION    OF   NOTICES. 

Avhat  efforts  had  been  made  to  find  defendant  within  the 
state.^ 

§  1041.  Difference  in  Statutes. —  The  statutes  of  the 
different  states  vary  materially  with  respect  to  the  affidavit. 
In  some  of  them  the  allegation  of  non-residence  is  not  suffi- 
cient without  the  further  statement  that  the  defendant 
could  not  be  found  within  the  state,^  while  in  others  it  seems 
sufficient  to  state  that  defendant  is  not  a  resident  of  the 
state.' 

§  1042.  Conclusions  of  Law  Not  to  l)e  Stated.— The 
decisions  are  by  no  means  uniform  upon  the  question  of 
what  is  a  sufficient  allegation  of  diligence  in  the  affidavit. 
Under  a  statute  requu-ing  that  it  should  appear  by  affidavit 
to  the  satisfaction  of  the  court  or  officer  that  personal 
service  could  not  be  had  within  the  state,  it  was  held  that 
the  words  "  appear  by  affidavit "  meant  that  the  affidavit 
should  allege  such  matters  as  would  amount  to  legal  evi- 
dence of  the  fact,  and  would  be  received  in  the  ordinary 
course  of  judicial  proceedings, —  "ISTot  conclusions,  opinions 
or  hearsay."  The  averment  that  the  "defendant  cannot 
with  due  diligence  be  found  within  the  state,"  was  therefore 
treated  as  the  mere  expression  of  an  opinion  on  the  part  of 
the  deponent.  ^  The  affidavit,  it  was  held,  should  have  de- 
tailed all  that  had  been  done  by  the  deponent  in  endeavor- 
ing to  obtain  personal  service  upon  the  defendant,  and 
should  be  sufficiently  strong  to  raise  at  least  a  prima  facie 
case  that  the  defendant  was  out  of  the  state  when  the  suit 
was  commenced.^ 

§  1043.  Expression  of  Opinion  Not  Sufficient. —  In  Har- 
rington V.  Loomis,*  the  court,  following  the  above  construc- 
tion of  the  statute,  applied  it  to  a  case  where  the  affidavit 
averred  that  deponent  had  "  seen  and  read  a  letter  received 

1  Sueterlee  v.  Sir,  25  Wis.,  357. 

-Mackubin  v.  Smith,  5  Minn.,  367. 

3 Byrne  v.  Roberts,  31  la.,  319;  Dronillard  v.  Wliistler,  29  Ind.,  552. 

*  Mackubin  v.  Smith,  5  Minn.,  367. 

nOlNIinn.,  366. 


OJRIGIXAL    PROCESS.  54:3 

by  mail,  by  *  -'  ^'  deponent's  law  partner,  within  a  few 
days  past,  having  the  postmark  of  the  postoffice  at  Mount 
Hilicon,  Franklin  county,  Missouri,  and  dated  at  that  place 
by  the  defendant;  that  this  deponent's  law  partner  is  the 
agent  of  both  said  defendants,  and  said  letter,  last  mentioned 
as  so  received,  was  directed  to  him  and  concerned  the  said 
HaiTington's  business  in  this  county,  and  this  deponent 
verily  beUeves  that  said  defendant  wrote  the  same,  and 
that  he  is  now  at  Mount  Hilicon  aforesaid."  This  affidavit 
was  held  insufficient,  as  its  statements  were  not  inconsistent 
with  defendant's  residence  in  the  state,  though  they  ex- 
pressed an  opinion  to  the  contrary. 

§  1 044.  Information  and  Belief. —  Elsewhere,  it  has  been 
held  that  for  the  purpose  of  obtaining  an  order  of  pubhca- 
tion,  an  affidavit  founded  on  information  and  behef  will  be 
sufficient  without  stating  in  detail  the  sources  of  such  infor- 
mation or  the  grounds  of  such  belief.^ 

§  1045.  Sufficient  Statement  of  Absence  from  State. — 
Where  the  affidavit  stated  that  the  defendant  was  a  resident 
of  the  Southern  Confederacy,  and  that  it  was  consequently 
impossible  to  obtain  personal  service,  this  was  held  sufficient 
to  authorize  an  order  of  pubhcation  of  notice  of  foreclosure 
of  a  mortgage.-  And  the  mere  statement  of  defendant's 
residence  in  the  Southern  Confederacy  was  held  sufficient  to 
show  that  he  could  not  be  found  within  the  state  of  New 
York.-^ 

§1046.  Affidavit  Attached  to  Other  Papers.— Where 
the  affidavit  for  an  order  of  publication  is  appended  to 
another  paper  which  is  properly  entitled  in  the  case,  and  the 
affidavit  refers  to  such  paper,  it  will  be  presmned  that  it  has 
by  the  reference  adopted  the  title,  and  the  objection  that 
the  affidavit  is  not  entitled  in  the  cause  will  not  be  enter- 
tained.* 

1  Steinle  v.  BeU,  12  Abb.  Pr.  (N.  S.),  171. 
2Deitricli  v.  Lang,  11  Kan.,  636. 

3  Van  Wyck  v.  Hardy,  4  Abb.  App.  Dec,  496. 

4  King  V.  Harrington,  14  Mich.,  532. 


544  PUBLICATION   OF   NOTICES. 

§  1047.  When  Sufficiency  of  Affldayit  Presumed.— Not 

withstanding  the  strictness  with  which  the  statute  has  uni- 
formly been  construed,  as  against  those  claiming  under 
judgments  or  decrees  rendered  by  default  after  notice  by 
publication,  in  a  case  where  the  term  of  six  years  had 
elapsed  after  the  rendition  of  the  judgment,  and  it  did  not 
appear  affirmatively  to  the  contrary,  it  was  presumed  that 
the  order  of  publication  was  made  on  a  sufficient  affidavit.^ 

§1048.  Not  ImpeacliaWe  in  Collateral.  Proceeding. — 
Where  there  is  a  judgment  by  default,  execution  and  sale 
of  real  estate,  pursuant  to  a  published  notice,  a  subsequent 
grantee  of  the  debtor  in  the  execution  cannot,  in  a  collateral 
proceeding,  show  the  falsity  of  the  affidavit  upon  which  the 
order  of  publication  was  founded,  in  order  to  impeach  the 
validit}^  of  the  judgment,  execution  and  sheriff's  deed.^ 

§  1041).  Ayernients  in  Pleading  Same  as  in  Affidavit. 
When  by  the  terms  of  the  statute  no  affidavit  is  necessary, 
as  where  the  order  is  based  upon  a  return  of  the  officer  in 
whose  hands  process  has  been  placed  for  personal  service, 
or  when  the  petition  or  complaint  sets  forth  the  facts  which 
render  the  publication  of  notice  necessary,  substantially  the 
same  averments,  and  the  same  mode  of  stating  them,  is 
required,  as  when  they  are  set  forth  in  the  original  affidavit. 

§  1050.  Amendment  Not  Allowed  After  Publication. — 
"When,  after  service  by  publication  is  made,  the  defendant 
does  not  appear  to  the  action,  the  plaintiff  will  not  be  per- 
mitted to  amend  his  pleading  and  take  judgment  by  default 
upon  the  cause  of  action  set  out  in  the  amended  pleading. 
The  defendant  has  no  notice  of  the  amendments,  and  is  only 
called  upon  to  answer  the  demand  set  up  against  him  by 
the  petition  on  file  when  the  notice  was  published.^ 

§  1051.  Order  of  PuWication  and  Notice. —  In  the  next 
place  the  order  of  publication  presents  itself  for  considera- 
tion.    By  whom  should  it  he  made?  and  What  should  it 

1  Gemmell  v.  Eice,  13  IMinn.,  400. 

2  Ogden  V.  Walters,  12  Kan.,  282. 

3  Janney  v.  Spedden,  38  Mo.,  395. 


ORIGINAL   TEOCESS.  545 

contain?  In  answering  the  latter  of  these  inquiries,  wo 
shall  be  compelled  to  enter  into  a  description  of  the  notice 
itself,  as  the  order  generally  includes  the  notice,  and  both 
are  published  together.  So,  to  avoid  unnecessary  repeti- 
tion, they  will  be  treated  of  without  attempting  to  distin- 
guish between  them  in  detail.  In  ordering  the  publication 
it  seems  almost  indispensable  to  state  what  the  notice  shall 
contain,  and  the  notice  recites  the  order  for  the  purpose  of 
showing  the  authority  for  the  publication. 

§1052.  Who  to  kake  the  Order.— As  to  who  shall 
make  the  order,  this  depends  upon  the  statute  by  which  it 
is  authorized,  the  nature  of  the  proceeding,  and  other  minor 
circumstances  too  numerous  and  diverse  to  mention  in  detail, 
as  the  usefulness  of  the  information,  which,  in  view  of  fre- 
quent changes  in  the  statute  law,  could  only  be  relied  upon 
temporarily,  would  not  counterbalance  the  space  consumed. 
In  general,  however,  the  order  is  made  by  the  court  where 
the  suit  is  pending  or  by  the  judge  or  clerk  in  vacation.^ 

§1053.  Must  he  hy  Designated  Officer.— Where  the 
court  or  officer  by  whom  the  order  shall  be  made  is  desig- 
nated by  statute,  a  valid  judgment  cannot  be  rendered  by 
default,  upon  a  publication  pursuant  to  the  order  of  any  one 
else.^  Thus,  in  Bardsley  v.  Hines,^  the  record  relied  upon 
as  showing  title  in  defendant  under  a  decree  of  foreclosure, 
contained  the  original  notice  which  was  served  by  publica- 
tion, by  which  it  appeared  that  the  order  was  made  by  the 
clerk  of  the  court,  Avhereas  the  statute  required  an  order 
of  publication  by  the  court  or  judge  of  the  county  or  dis- 
trict court.  It  was  held  that  the  publication  under  the  order 
of  the  clerk  amounted  to  no  more  than  if  the  notice  had 
been  published  without  any  order  at  all,  and  the  decree  ren- 
dered by  default  was  utterly  void. 

§  1054.  Change  of  Order  Without  Authority.—  So 
where,  under  the  Probate  Act  of  California,  it  was  neces- 

1  See  Local  Statutes. 

2  Townsend  v.  Tallant,  33  Cal.,  45. 

3  33  la.,  157. 

35 


546  PUBLICATION    OF   NOTICES. 

sary  to  publish  an  order  of  the  court,  giving  public  notice 
to  all  persons  interested  in  the  estate  of  decedent,  to  appear 
and  show  cause,  etc.,  and  the  court  made  the  order,  desig- 
nating the  paper,  but  before  the  expiration  of  the  time  for 
which  the  notice  was  required  to  be  pubhshed  by  the  pro- 
vision of  the  statute,  and  the  order  made  in  pursuance 
thereof,  the  ])aper  was  discontinued,  and  the  administrator 
selected  another  paper  in  which  the  order  was  pubhshed, 
such  publication  was  decided  to  be  unauthorized,  and  the 
proceedings  in  pursuance  thereof  void.^ 

§1055.  Contents  of  the  Order. —  As  matter  of  pre- 
amble the  published  order  usually  contains  a  recital  of  such 
jurisdictional  matters  as  are  averred  in  the  affidavit  or  peti- 
tion, as  a  foundation  for  the  order.-  Kor  can  this  be  said 
to  be  unnecessary,  as  it  is  essential  that  the  pubhcation 
should  set  forth  in  substance  all  that  is  alleged  against  the 
party  to  be  affected ;  though  the  form  in  which  such  facts 
are  expressed  is  immaterial. 

§  1056.  Sufficient  Recitals  to  Inform  Defendant. — 
The  notice  should  contain  sufficient  recitals  to  inform  de- 
fendant of  the  nature  of  the  suit  to  which  he  is  required  to 
answer.  To  this  end,  the  order  of  publication  and  notice 
should  go  to  the  extent  of  a  substantial  statement  of  all  the 
objects  of  the  suit ;  and  where  it  was  stated  in  a  pubhshed 
notice  that  the  object  of  the  suit  was  to  set  aside  a  deed, 
without  any  statement  of  tlie  grounds  upon  which  such  a 
decree  was  prayed,  the  notice  was  held  insufficient,  and  a 
judgment  rendered  in  pursuance  thereof  utterly  void.' 

§1057.  Averment  of  Attachment  in  Notice. —  So, 
Avhere  the  suit  is  by  attachment,  it  is  held  in  some  of  the 
states  that  the  notice  as  published  should  state  that  the  de- 
fendant's property  has  heen  attached}    Where  such  is  the 

'Townsend  v.  Tallant,  33  Cal.,  45.  See,  also,  Adriancev.  McCafferty, 
2  Rob.  (N.  Y.),  153;  Pomeroy  v.  Betts,  31  Mo,,  419. 

2  Newman  v.  Cincinnati,  18  Ohio,  331. 

sBobb  V.  Woodward,  42  Mo.,  483. 

•^  Durossett  v.  Hale,  38  Mo. ,  346.  See,  however,  Dronillard  v.  "Whistler, 
29  Ind.,  552,  where  the  notice  is  not  required  to  show  that  the  proceedings 


ORIGINAL   PEOCESS.  547 

construction  given  to  the  statute  by  the  courts  of  the  state, 
it  has  nevertheless  been  held  sufficient  to  allege  that  the 
property  was  alovt  to  he  attached^  as  the  object  of  the  notice 
was  to  advise  the  defendant, of  ih.e  2)'^ndency  of  the  siiit, 
and  the  plaintiff  was  entitled  to  the  order  on  bringing  the 
suit,  which  might  be  before  the  clerk  issuing  the  order  in 
vacation  would  be  able  to  certify  to  the  levy  of  the  attach- 
ment.' 

§  1058.  Nature  and  Amount  of  Plaintiff's  Demand. — 
Under  a  statute  requiring  the  published  notice  to  state  the 
"  nature  and  amount  of  the  plaintiff's  demand."  the  notice 
in  a  suit  by  attachment  alleged  that  the  proceedings  were 
"  founded  on  two  promissory  notes  for  the  sum  of  $386.94." 
A  default  was  taken  for  the  sum  of  $516.  In  deciding  a 
motion  to  set  aside  the  judgment  for  irregularity,  this  was 
held  sufficiently  descriptive  of  the  nature  of  the  demand, 
but  as  it  nowhere  appeared  how  much  was  still  due  on  the 
notes,  the  notice  was  insufficient  for  the  want  of  a  statement 
of  the  amount  claimed,  and  the  judgment  was  set  aside.^ 

§  1059.  Foreclosure  and  Partition  —  Description. — 
"Where  the  object  of  the  suit  is  the  foreclosure  of  a  mort- 
gage, or  the  partition  of  real  estate,  the  property  to  be 
affected  should  be  correctly  described,  and  with  sufficient 
certaint}"  to  leave  no  room  for  doubt  as  to  the  particular 
parcel  or  parcels  intended.' 

§  1060.  Names  of  Defendants. —  The  order,  and  the  no- 
tice in  pursuance  thereof,  should  be  in  harmony,  and  where 
there  are  several  defendants,  one  or  more  of  whom  are, 
from  non-residence  or  other  cause,  liable  to  be  summoned 
by  publication,  both  the  order  and  the  published  notice 

are  by  attachment.  See,  also,  Cooper  v.  Reynolds,  10  Wall.,  308;  Pen- 
uoyer  v.  Neff,  95  U.  S.,  714;  Voorhees  v.  Bank  of  U.  S.,  10  Pet.,  449; 
Paine  v.  Moorland,  15  Oliio,  435;  1  Wade  on  Attaclunent,  §  45. 

'Harris  v.  Grodner,  42  Mo.,  159. 

2 Haywood  v.  Russell,  44  Mo.,  252.  See,  also,  Gary  v.  May,  10  Ohio, 
36 ;  Lawler  v.  Whette,  1  Handy,  29. 

sPomeroy  v.  Betts,  31  Mo.,  419. 


545  PUBLICATION    OF   NOTICES. 

should  contain  the  names  of  those  to  be  so  served.  Accord- 
ingly, in  Pomeroy  v.  Betts,^  where  there  were  several  non- 
resident defendants,  and  several  others  as  to  whom  it 
appeared  by  the  sheriff's  return  that  they  could  not  be 
found,  etc.,  and  an  order  of  publication  was  made  as  to  the 
non-residents,  and  service  in  the  same  manner  was  ordered 
uj)on  those  not  found,  under  a  separate  provision  of  the 
statute  authorizing  an  order  of  publication  founded  upon 
such  return,  by  the  court  and  not  by  the  clerh,  it  was  held 
that,  although  the  names  of  all  the  absentees  appeared  in 
the  notice,  it  being  published  under  the  order  against  the 
non-residents,  could  not  be  regarded  as  directed  to  those  not 
mentioned  in  the  first  order,  which  was  by  the  clerk.  The 
order  founded  upon  the  no7i  est  return  should  have  been 
published  separately,  or  both  should  have  been  signed  by 
the  court.  As  it  was,  the  judgment  being  against  all,  was, 
for  the  irregularity,  set  aside,  even  as  to  the  defendant  per- 
sonally served. 

§  10(>1.  Unnecessary  to  Designate  Statute. —  It  is  not 
necessary  for  either  the  order  or  notice  to  designate  the 
statute  by  which  the  same  is  authorized,  and  when  there  is 
an  attempt  to  incorporate  this  or  any  other  useless  matter 
in  the  notice,  the  validity  of  the  proceeding  will  not  be 
affected  by  errors  in  setting  them  out  or  designating  them.' 

§  1062.  Order  Must  be  Properly  Signed. —  But  as  the 
making  of  the  order  is  an  official  act,  publication  of  the  no- 
tice can  give  no  validity  to  proceedings  had  in  pursuance 
thereof,  unless  the  order  is  signed  by  the  court,  judge  or 
clerk  designated  by  law  as  the  proper  one  to  make  the 
same.' 

§  1063.  Should  State  Return  Day. —  The  notice  should 
also  name  the  day,  with  reasonable  certainty,  upon  which 
the  defendant  so  served  with  process  is  required  to  appear 
and  answer,  and  the  order  should  direct  the  time  ior  which 

131  Mo.,  419. 

2Soule  V.  Chase,  1  Rob.  (N.  Y.),  233. 
3  Hays  V.  Lewis,  21  Wis.,  663. 


OKIOmAL   PROCESS.  54:9 

the  publication  is  to  be  made.  It  was  accordingly  held, 
where  a  subpoena  in  chancery,  served  by  publication,  was 
dated  "March  2, 1860,"  requiring  appearance  on  the  second 
Monday  of  "  March  next,"  that  this  would  not  authorize  a 
decree  jpro  confesso} 

§  1064.  Publication. —  In  the  next  place,  in  pursuing  the 
requirements  of  the  statute  and  following  the  directions  of 
the  order,  the  important  matter  is  the  publication  of  the 
notice.  A  consideration  of  this  necessarily  involves  an  in- 
quiry into  the  proper  medium,  to  be  employed  in  making 
public  the  facts  contained  in  the  notice,  and  the  time  of  pub- 
lication, with  reference  both  to  the  number  of  months, 
weeks  or  days  for  which  such  publication  shaU  continue, 
and  the  particular  time  when  it  shall  cease. 

§  1065.  Newspaper. —  The  medium  of  publication  gen- 
erally designated  by  the  statute  is  a  newspaper.  Sometimes 
it  is  required  to  be  a  public  newspaper ;  but  this  adds  noth- 
ing to  what  would  be  necessarily  implied  in  the  term 
"  newspaper ; "  for  any  publication  answering  this  general 
description  must  of  necessity  be  public  in  its  character.  So 
that  proof  of  publication  in  a  nexospaper  would  show  a  suf- 
ficient compliance  with  a  statute  or  order  requiring  the 
notice  to  be  published  in  ts,  piiblic  newspaper? 

§  1066.  What  is  a  Newspaper? — In  order  to  fulfill  the 
terms  of  the  law,  the  notice  must  be  directed,  by  the  court 
or  ofiicer,  to  be  inserted,  for  the  statutory  time,  in  some 
paper  printed  and  circulated/br  the  dissemination  of  news; 
but  it  is  not  essential  that,  to  answer  the  description,  the 
paper  shall  be  devoted  to  the  dissemination  of  news  of  a 
general  character.  It  may,  with  equal  propriety,  be  pub- 
lished in  a  paper  devoted  exclusively  to  the  discussion  of 
religious,  legal,  commercial  or  scientific  topics,  and  the  dif- 

lEleev.  Wait,  38IU.,70. 

2 Bailey  v.  Myrick,  50  Me.,  171.  In  Mobley  v.  Leophart,  47  Ala.,  257, 
it  was  held  that,  as  the  chancellor  and  register  were  clothed  with  discre- 
tion as  to  the  place  of  publication,  a  decree  i^ro  confesso  in  Alabama,  on 
a  publication  in  Georgia,  was  good. 


550  PUBLICATION   OF   NOTICES. 

fusion  of  knowledge  touching  special  matters  within  its 
limited  sphere,  as  in  a  public  journal,  the  columns  of  which 
are  open  to  news  of  a  general  character.  It  may  be  a  relig- 
ious newspaper,  a  commercial  newspaper,  a  legal  newspaper, 
a  scientific  newspaper,  or  a  political  newspaper.^ 

§  1067.  Published  in  Designated  Paper.— When  the 
newspaper  has  been  designated  there  must  be  a  strict  com- 
pliance with  the  order  in  this  respect.  The  pubUcation 
being  made  in  any  other  paper  than  the  one  mentioned  in 
the  order,  would  confer  no  jurisdiction  upon  the  court  to 
render  judgment,  where  there  is  no  appearance  by  the  de- 
fendant. But  a  slight  variance  in  the  title  of  the  paper  in 
which  the  notice  is  directed  to  be  published,  from  that  by 
Avhich  it  is  really  known,  will  not  vitiate  the  process,  where 
it  satisfactorily  appears  that  the  pubUcation  was  in  the  one 
intended  by  the  order.  As  where  the  order  designated  the 
"  Evening  Day  Book,"  and  the  notice  Avas  published  in  the 
"  Kew  York  Day  Book,"  there  being  no  evidence  offered 
that  there  was  any  other  paper  of  the  same  or  a  similar 
name,  to  which  the  order  could  apply,  this  was  held  suffi- 
cient.^ 

§  1068.  Substitute  for  Publication  in  Paper. —  Other 
means  are  sometimes  prescribed  by  statute,  either  as  a  sub- 
stitute for  publication  in  a  newspaper,  or  in  conjunction 
with  such  publication,  such  as  posting  the  notice  in  several 
public  places  within  the  county,  but  this  method  of  publish- 
ing notices  is  so  rarely  employed  for  the  purpose  of  obtain- 
ing service  of  process  that  it  will  not  receive  further  notice 
here. 

§  1069.  Full  Time. —  It  is  of  the  utmost  importance 
that  the  notice  shall  be  published  for  the  full  time  required 
by  the  statute  and  directed  by  the  order  of  the  court  or 

1  Kellogg  V.  Corrico,  47  Mo.,  157;  Kerr  v.  Hitt,  75  111.,  51.  But  in  the 
absence  of  contrary  provisions  in  the  statute,  it  wUl  be  understood  to 
mean  a  newspaper  published  in  the  English  language.  Cincinnati  v. 
Bickett,  26  Oliio  St.,  49;  Graham  v.  King,  50  Mo.,  23;  11  Am.  R.,  401. 

2  Soule  V.  Chase,  1  Rob.  (N.  Y.),  222. 


OKIGIXAL    PROCESS.  551 

officer ; '  that  the  last  insertion  shall  be  a  sufficient  length 
of  time  before  the  return  day ;  -  and  that  such  publication 
shall  not  commence  prior  to  the  date  of  the  order;  for  until 
the  order  is  made  the  publication  is  unauthorized. 

§  1070.  Computation  of  Time. —  In  computing  the 
time  of  publication  and  the  statutory  period  intervening  be- 
tween the  last  pubhcation  and  the  return  day,  the  date  of 
the  first  insertion  will  be  included,  for  the  purpose  of  deter- 
mining whether  the  notice  has  been  pubhshed  for  the  full 
tinje,  and  the  intervening  period  will  be  understood  to  com- 
mence with  the  day  following  that  on  which  the  time  of 
publication  ceases.' 

§  1071.  Three  Calendar  Months. —  An  example  of  this 
is  furnished  by  the  case  of  Savings,  etc.,  Society  v.  Thomp- 
son.* There  the  first  weekl}^  insertion  was  made  on  the 
10th  day  of  January  and  the  last  on  the  9ih  day  of  Aj^ril 
following.  This  was  held  to  be  a  publication  for  three  full 
calendar  months ;  and  the  first  day  of  the  forty  required  to 
intervene  between  the  pubhcation  and  the  return  would  be 
the  10th  day  of  April. 

%  1072.  Three  Weeks  Snccessively. —  Where  the  statute 
required  pubhcation  for  "  three  weeks  successively,"  before 
the  hearing,  its  provisions  were  held  sufficiently  compUed 
with  by  three  weekly  publications,  although  the  last  of  the 
three  was  on  the  day  before  that  appointed  for  the  hearing.* 

§  1073.  Last  Insertion  Four  Weeks  Prior  to  Term.— 
So,  in  the  case  of  Haywood  v.  Eussell,*^  under  a  statute  re- 
quiring the  pubhcation  of  the  notice  for  four  weeks,  and 
that  the  last  insertion  should  be  "  at  least  four  weeks  before 
the  term,"  it  was  held  that  this  did  not  necessarily  give 
eight  weeks  from  the  first  insertion  to  the  commencement 

1  HUl  V.  Faison,  27  Tex.,  428. 
-Grewell  v.  Henderson,  5  Cal.,  465. 

5  Mitchell  V.  Woodson,  37  Miss.,  567. 
4  33  Cal.,  347. 

5 Sweet  V.  Sprague,  55  Me..  190. 

6  44  Mo.,  252.    See,  also,  Boonett  v.  Hetherington,  41  la.,  143. 


552  PUBLICATION   OF   NOTICES. 

of  the  tenn.  It  was  the  last  insertion,  not  the  last  week  of 
the  publication,  which  was  required  to  be  four  weeks  prior 
to  the  term.  The  notice  being  inserted  at  the  beginning  of 
the  last  of  the  four  weeks  for  which  it  was  required  to  be 
jjublished,  the  remaining  portion  of  the  week  might  go  to 
make  up  a  part  of  the  time  necessary  to  intervene  between 
the  publication  and  the  commencement  of  the  time  at  which 
the  process  was  returnable. 

§  1074.  Six  Weeks'  Publication.— Where  the  statute 
required  six  weeks'  publication  of  notice  of  an  application 
to  sell  lands  of  a  decedent,  notice  for  any  shorter  time  was 
held  insufficient  to  warrant  the  sale,  although  the  applica- 
tion was  only  made  after  the  expiration  of  six  weeks  from 
the  date  of  the  first  insertion  of  the  notice.^ 

§  1075.  When  Time  Cannot  be  Shortenetl. —  So  where 
the  publication  by  the  surrogate  of  a  notice  "  to  all  persons 
interested,"  etc.,  to  appear  and  show  cause  why  a  sale  of 
decedent's  land  should  not  be  made,  was  required  by  stat- 
ute, such  publication  was  held  necessary  to  confer  jurisdic- 
tion on  the  surrogate  to  make  the  order  of  sale,  and  if 
without  the  statutory  notice,  the  sale  would  be  void.^  And 
the  time  prescribed  by  the  statute  was  held  mandatory  upon 
the  surrogate,  and  could  not  be  shortened  by  him  without 
rendering  the  order  and  sale  utterly  void.^  ISTor  can  the 
time  of  hearing  an  application  for  an  order  of  sale  be  set 
for  a  term  of  court  subsequent  to  that  for  which  notice  was 
originally  given,  ^VithoMt  fiu'ther  notice^  *  but  where  process 
has  been  duly  published  and  made  returnable  to  the  first 
term  of  court,  in  an  action  for  which  publication  is  author- 
ized, it  may  be  regularly  continued  and  judgment  taken  at 
a  subsequent  term.^ 


1  Gibson  v.  Roll,  30  lU.,  172;  Herdman  v.  Short,  18  111.,  59. 
sCorwin  v.  Merritt,  3  Barb.,  341. 

3  Havens  v.  Sherman,  42  Barb.,  636. 

4  Morris  v.  Hogle,  37  HI.,  150:  Schnell  v.  Chicago,  38  Ul.,  383. 
sCrabbc.  Atwood,  10  Ind.,  331. 


ORIGINAL   TEOCESS.  553 

§  1076.  Days,  Weeks  or  Months.— The  time  for  which 
notice  shall  be  given  is  expressed  either  in  days,  weeks  or 
months,  and  in  construing  the  meaning  of  these  terms  with 
reference  to  notices  of  judicial  and  other  involuntary  sales 
of  real  estate,  conclusions  have  been  reached  by  the  courts 
which  will  in  general  be  equally  applicable  to  notices  by 
publication  of  judicial  proceedings.' 

§  107  7.  Certain  Time,  or  Certain  Number  of  Times. —  A 
distinction,  however,  is  made  between  statutes  requiring  pub- 
lication for  a  certain  period  of  time^  in  what  manner  soever 
such  period  is  denominated,  and  those  requiring  the  inser- 
tion of  the  notice  a  certain  number  of  thnes^  in  a  newspaper, 
where  the  continuance  of  the  pubhcation  will  be  deter- 
mined by  the  number  of  regular  issues  within  a  given  time.'- 

§  1078.  Ten  Publications  in  Ten  Weeks.— This  distinc- 
tion is  fairly  illustrated  in  Soule  v.  Cliase,^  where  the  notice 
published  was  of  an  order  of  the  court,  for  the  creditors  of 
an  insolvent  debtor  to  appear  and  show  cause  why  the  in- 
solvent should  not  be  discharged  from  his  debts.  There  the 
statute  under  which  the  publication  was  made,  requu^ed  the 
notice  to  be  by  ten  jmhlications,  each  of  loJiich  should  he  in 
one  of  ten  successive  weehs,  the  commencement  whereof  was 
to  be  determined  by  the  first  publication.  The  objection  of 
insuflQcient  time  of  publication  was  held  properly  overruled, 
although  it  appeared  that  the  proof  was  made  on  the  sixty- 
third  day  after  the  first  publication,  the  notice  having  been 
inserted  once  in  each  of  ten  successive  weeks. 

§  1079.  Two  Weeks  in  Daily  Paper. —  It  being  ques- 
tioned whether  the  statutory  requirement,  that  notice  should 
be  published  "  for  two  weeks  successively,"  could  be  satis- 
fied by  publication  for  two  weeks  in  a  daily  paper,  without 
a  daily  insertion,  it  was  regarded  as  sufficient  to  insert  the 
notice  on  Tuesday  and  Saturday  of  each  week.^ 

1  See  post,  §  1100  et  seq. ;  %  1113  et  seq. 

2  Sheldon  v.  Wright,  5  N.  Y.,  497 ;  S.  C,  7  Barb.,  39. 
3 1  Rob.  (N.  Y.),  223. 

< Brewer  v.  Springfield,  97  Mass..  152. 


554  PUBLICATION   OF   NOTICES. 

§  1080.  Proof  of  Pul)licatioii. —  Kext,  as  to  the  proof 
of  2>uUication.  A  compliance  with  the  prerequisites  of  the 
statute  with  respect  to  publication  is  usually  established  by 
the  affidavit  of  the  printer  or  pul)lisher  of  the  paper  in 
which  the  notice  is  published.  This,  however,  is  a  matter 
of  statutory  regulation,  and  in  general  is  not  prescribed  to 
the  exclusion  of  all  other  modes  of  proof.  AVhere  the  affi- 
davit was  held  admissible,  it  was  also  held  that  the  pubUca- 
tion  might  be  proved  by  the  production  of  the  papers 
containing  the  notice  in  court.^  ISTor  is  it  necessary,  in  every 
instance  where  an  affidavit  is  relied  on,  that  it  should  be 
made  by  \hQ  publisher  oy  liis  foreman^  although,  in  general, 
one  of  these  would  be  the  most  likely  to  be  cognizant  of  the 
facts.^ 

§  1081.  To  Satisfaction  of  Court. —  In  any  event,  it  is 
necessary  that  the  publication  must  be  proved,  to  the  satis- 
faction of  the  court,  to  have  been  in  compliance  with  the 
provisions  of  the  statute  authorizing  the  service  of  process 
in  that  manner.  Accordingly  where  the  notice  was  not 
dated,  and  an  affidavit  was  made  and  filed,  declaring  that  a 
notice  which  was  annexed  had  been  published  for  six  suc- 
cessive weeks  "  preceding  the  said  23d  day  of  September," 
there  being  nothing  in  the  affidavit  or  papers  referring  to, 
or  identif34ng  any  month  of  September,  it  was  held  that 
the  proof  was  not  of  publication  in  conformity  to  the  statute, 
as  it  did  not  show  inlien  the  notice  was  published.^ 

§  1082.  Affitlavit  Not  Conclusive.— Where  the  mode  of 
proof  is  by  affidavit,  this  will  not  generally  be  regarded  as 
conclusive  upon  the  defendant  appearing  specially  for  the 
purpose  of  objecting  to  the  proceeding,  on  account  of  an 
alleged  irregularity  in  the  service  of  process.* 

§  1083.  Divorce  and  Alimony. —  One  of  the  class  of 
actions  wherein  the  process  may  be  effectually  served  by  pub- 

1  Claybrook  v.  Wade,  7  Coldw.  (Tenn.),  555. 

2Soule  V.  Chase,  1  Rob.  (N.  Y.),  222. 

3  King  V.  Harrington,  14  Mich. ,  532. 

<  Mussina  v.  Moore,  13  Tex.,  7;  Kitchen  v.  Crawford,  id.,  516. 


ORIGINAL   PROCESS.  555 

lication  which  concerns  other  than  mere  proprietory  rights, 
is  a  suit  for  divorce  and  ahmony.  In  order  to  render  this 
method  of  service  effectual,  however,  for  the  purpose  of 
binding  specific  property,  it  should  include  a  general  descrip- 
tion of  the  property  sought  to  be  affected.  And  where 
there  is  a  prayer  for  alimony  in  the  petition,  it  cannot  be 
granted  upon  the  default  of  defendant,  so  as  to  render  it 
available  as  a  personal  judgment,  unless  there  is  personal 
service.^ 

§1084.  Judgment  Binds  Property.— The  effect  of  a 
judgment  rendered  by  default,  or  pro  confesso,  upon  service 
of  process  by  publication,  except  in  proceedings  for  divorce, 
is  only  to  bind  the  property  of  the  defendant  which  is 
within  the  jurisdiction  of  the  court,  and  against  which,  or 
with  reference  to  w^hich,  the  suit  is  instituted.  Consequently 
a  judgment  in  personam  rendered  upon  such  process  is 
void.-  As  a  further  consequence  of  the  limitation  upon  the 
jurisdiction  of  the  court  to  render  judgment  upon  process 
served  by  publication,  an  action  cannot  be  maintained  upon 
a  judgment  so  obtained  in  another  state.' 

§  1085.  Judgment  Not  Sul)ject  to  Collateral  Attack. — 
Where  there  has  been  a  defective  service  of  process  by  pub- 
lication, and  a  judgment  or  decree  is  entered  in  pursuance 
thereof,  the  proper  manner  of  taking  advantage  of  the 
irregularity  is  by  direct  proceeding  to  set  aside  such  judg- 
ment or  decree,  as  it  has  been  laid  down  as  a  rule  that  tlie 
judgments  of  a  court  of  general  jurisdiction  are  not  open 
to  collateral  attack,  when  the  record  upon  its  face  shows 
them  to  be  regular,''    It  is  not  enough  that  the  record  fails 

»  Beard  v.  Beard,  21  Ind.,  321. 

2  Cooper  V.  Smith,  25  la.,  269;  Mitchell  v.  Gray,  18  Ind.,  123;  Judali 
V.  Stephenson,  10  la.,  493;  Pomeroy  v.  Betts,  31  Mo.,  419.  But  see  Otis 
V.  Dargan,  53  Ala.,  178,  where  it  was  held  that  tlie  heirs  of  a  decedent 
were  concluded  by  published  notice  of  final  settlement. 

3  Chamberlain  v.  Faris,  1  Mo.,  517;  Sallee  v.  Hays,  3  Mo.,  116;  Win- 
ston V.  Taylor,  28  Mo.,  83. 

<Galpin  v.  Page,  1  Sawyer,  309;  Halm  v.  Kelly,  34  Cal.,  391;  Grig- 
non's  Lessees  v.  Astor,  2  How.  (U.  S.),  319;  Voorhees  v.  Bank  of  U.  S., 


556  PUBLICATION   OF   NOTICES. 

to  show  jurisdiction,  affirmatively.  It  must  appear  affirm- 
ativcl}^  that  the  coui*t  did  not  have  jm'isdiction ;  otherwise 
it  will  be  presumed.^ 

10  Pet.,  449;  Sargeant  v.  State  Bank  of  Indiana,  12  How,,  371;  Huff  v. 
Hutchinson,  14  How.,  586;  Huntington  v.  Charlotte,  15  Vt.,  46;  Foote 
V.  Stevens,  17  Wend.,  483;  Granger  v.  Clai-k,  23  Me.,  128. 

1  Ante,  %  1057.  But  when  the  court  is  exercising  a  special  statutory- 
jurisdiction,  it  is  governed  by  the  rule  that  applies  to  courts  of  limited 
or  special  jurisdiction.     1  Wade  on  Attachment,  §§  46,  47. 


JUDICIAL   SALES.  557 


II.  Judicial  Sales. 

§  1086.  Statutory  Eequirement,  Directory. 

1087.  Purchaser  with  Notice. 

1088.  Description  of  Property. 

1089.  Immaterial  Omissions. 

1090.  Changing  Name  of  Paper. 

1091.  Several  Executions  in  One  Advertisement. 
1093.  Sale  May  be  Adjourned. 

1093.  May  be  on  Alias  Execution. 

1094.  Error  in  Sheriff's  Return. 

1095.  Publication  in  Paper  Where  Posting  Required. 

1096.  Failure  of  Notice  Will  Not  Avoid  Sale. 

1097.  Strict  Comphance  Required. 

1098.  Sale  Void  for  Want  of  Proper  Notice. 

1099.  No  Uniform  Rule  as  to  Notice  of  Sales. 

1100.  Time  of  PubHcation. 

1101.  Six  Weeks'  Notice. 

1102.  Once  a  Week  for  Three  Months. 

1103.  What  Constitutes  Publication. 

1104.  Posting  in  Public  Places. 

§1086.  Statutory  Requirement,  Directory. —  In  gen- 
eral, a  strict  adherence  to  statutory  requirements  is  not  so 
essential  to  a  valid  sale,  under  a  judgment  or  decree  of  a 
court,  as  it  is  to  the  support  of  a  title  acquired  under  an 
involuntary  sale  made  without  such  judgment  or  decree. 
The  grounds  of  the  distinction  are  the  notoriety  of  the  pro- 
ceedings in  court  by  which  the  judgment  was  obtained,  and 
the  fact  of  defendant's  having  already  been  brought  in  by 
process,  and  consequently  is  supposed  to  watch  all  subse- 
quent proceedings  likely  to  affect  his  interest,  until  the  proi> 
erty  levied  upon  to  satisfy  the  judgment  has  been  disposed 
of.  It  has  accordingly  been  held  that  the  provision  of  the 
statute  requiring  the  advertisement  of  judicial  sales  Avas 
directory,  and  that  a  purchaser  at  such  a  sale,  made  with- 
out the  publication  of  the  notice  directed  by  the  statute, 
who  purchased  without  any  knowledge  of  the  omission  of 
duty  by  the  officer,  would  take  a  good  title,  and  any  one 


558  '  PUBLICATION    OF    NOTICES. 

injured  by  the  official  misprision  would  be  remanded  to  Lis 
remedy  against  the  delinquent  officer.^ 

§  1087.  Purchaser  with  Notice. —  But  where  the  pur- 
chaser takes  with  knowledge  of  the  failure  to  comply  with 
the  requirements  of  the  statute  in  this  particular,  it  is  held 
differently.^ 

§  1088.  Description  of  Property. —  When  the  property 
is  advertised  for  sale,  especially  if  it  be  real  estate,  the  pub- 
lished notice  should  contain  a  substantially  correct  descrip- 
tion of  the  property,  as  the  title  of  the  judgment  debtor  to 
the  property  described  in  the  advertisement  is  all  the  inter- 
est that  will  pass  by  the  sale.  So,  where  the  description 
was  in  such  general  terms  as,  all  the  land  of  the  defendant, 
located  in  a  particidar  county,  this  was  held  insufficient 
notice  of  sale  to  pass  the  judgment  debtor's  title  in  the  land 
sold,  to  even  an  innocent  purchaser.^ 

§  1089.  Immaterial  Omissions. —  But  immaterial  vari- 
ations or  omissions  in  the  description  of  the  property 
would  not  only  not  operate  to  defeat  the  title  of  the  pur- 
chaser at  the  sale,  but  would  not  furnish  grounds  for  an 
action  against  the  officer  committing  the  error.  Thus  in 
Duncan  v.  Matney,*  where  the  sheriff,  in  the  advertisement, 
omitted  to  mention  the  name  of  the  county  in  which  the 
property  was  located.  As  it  is  generally  known  that  the 
sheriff  of  one  county  cannot  sell  land  lying  in  another,  this 
error  was  treated  as  immaterial. 

§  1090.  Changing  Name  of  Paper. —  Merely  changing 
the  name  of  the  paper  in  which  property  is  advertised  for 
sale  under  an  execution  issued  on  a  judgment  or  decree, 
will  not  have  the  effect  of  invalidating  a  sale  made  in  pur- 
suance of  such  advertisement.^ 

1  Miner  v.  Natchez,  4  S.  &  M.,  602;  Hendrick  v.  Davis,  27  Ga.,  167; 
Johnson  v.  Eeese,  28  Ga.,  353;  Harvey  v.  Fisk,  9  Cal.,  93. 

2Hayden  v.  Dunlap,  3  Bibb,  216;  Webber  v.  Cox,  6  Monr.,  110. 

3Frazier  v.  Steenrod,  7  la.,  339;  Merwin  v.  Smith,  2  N.  J,  Eq.,  182; 
Reynolds  v.  Wilson,  15  111.,  394. 

4  29  Mc,  368. 

5  Isaacs  V.  Shattuck,  12  Vt.,  668. 


JUDICIAL    SALES.  '559 

§  1091.  Several  Executions  in  One  Advertisement.— 

It  is  not  necessary  that  there  should  be  a  separate  adver- 
tisement for  each  execution,  wliere  there  are  several  in  the 
hands  of  the  officer  at  the  same  time  against  the  same 
defendant.^ 

§  1092.  Sale  May  be  Adjourned. —  It  has  been  held  that, 
to  render  the  sale  valid,  it  was  not  requisite  that  it  should 
be  made  on  the  precise  day  for  which  it  was  advertised,  if, 
for  good  reason,  it  should  be  found  necessary  to  adjourn  the 
sale  to  a  subsequent  day.  As  where,  upon  the  property 
being  stricken  off,  the  purchaser  was  allowed  until  another 
day  to  perfect  his  arrangements  for  payment,  and  verbal 
notice  was  given  that  the  sale  would  be  kept  open  until  that 
time ;  but  the  successful  bidder  failing  to  complete  his  pur- 
chase within  the  allotted  time,  the  officer  proceeded  to  sell 
the  property  without  further  publication  of  notice.  The 
title  acquired  under  this  sale  was  held  valid,  because  it  did 
not  appear  that  the  property  was  sold  for  an  inadequate 
price  in  consequence  of  a  failure  to  re-advertise.- 

§  1093.  May  be  on  Alias  Execution. —  Where  an  adver- 
tisement had  been  published,  and  before  the  day  of  sale,  as 
therein  specified,  the  original  ve7iditioni  exponas  was  re- 
turned and  an  alias  issued,  which  was  in  the  hands  of  the 
officer  at  the  time  of  the  sale,  such  sale  was  held  valid, 
though  the  original  writ  under  which  the  publication  was 
made  had  expired,  and  there  was  no  publication  of  notice 
after  the  alias  was  issued.* 

§  1094.  Error  in  Sheriff's  Return.— Where  the  sheriflfi 
in  making  his  return,  committed  an  error  in  the  description 
of  the  real  estate,  with  reference  to  the  numbers,  and  such 
error  was  continued  in  the  advertisement,  this  was  held  not 
to  invalidate  the  sale,  so  as  to  affect  the  title  in  the  hands 
of  an  innocent  purchaser,  as  against  a  subsequent  purchaser 


1  Arnold  v.  Dinsmore,  3  Cold.,  235. 
2Isbell  V.  Kenyon,  33  Mich.,  68. 
^Luther  v.  McMichael,  6  Humph.,  298. 


560  PUCLICATIOX    OF    NOTICES. 

of  the  same  property  by  a  correct  description,  wlio  took 
■with  knowledge  of  the  first  purchase.^  This  was  so  decided 
where  a  suit  in  chancery  was  brought  by  the  first  purchaser 
to  cancel  the  second  deed,  although  it  had  2:)reviously  been 
decided  by  the  same  court  that  to  constitute  a  vahd  deed, 
under  an  execution  sale,  there  must  be  an  advertisement  of 
the  sale.^ 

§  1095.  Publication  in  Paper  Where  Posting  Re- 
quired.—  So,  where  the  statute  provided  for  the  publication 
of  notice  of  sale,  by  posting  written  or  printed  copies  in 
public  places  within  the  county,  and  the  officer  omitted 
entirely  to  give  the  notice  in  the  prescribed  manner,  but 
publish e  1  it  in  a  newspaper,  it  was  held  that  this  irregu- 
larity would  not  vitiate  a  sale  of  either  real  or  personal 
property,  made  in  pursuance  of  notice  so  published.^ 

§  1096.  Failure  of  Notice  Will  Not  Ayoid  Sale.— There 
are  other  cases  decided  under  statutes  requiring  the  publi- 
cation of  notice  of  judicial  sales,  either  by  advertisement 
in  a  newspaper  for  a  specified  time,  or  by  a  certain  number 
of  insertions,  or  by  posting  copies  of  the  notice  in  public 
places,  where  it  is  held  that  this  requirement  of  the  statute 
is  merely  directory,  and  a  failure  or  omission  to  publish  the 
notice  will  merely  have  the  effect  to  render  the  delinquent 
officer  liable  to  any  one  injured  by  his  misprision,  and  will 
not  affect  the  title  of  a  purchaser  at  the  sale.^ 

§1097.  Strict  Compliance  Required. —  Upon  the  other 
hand,  the  cases  decided  under  similar  statutes  are  quite 
numerous,  where  a  strict  compliance  with  the  statutory  pro- 


1  Steward  v.  Pettigrew,  28  Ark.,  373.  See,  also,  Newton  v.  State 
Bank,  14  Ark.,  9;  Eingold  v.  Patterson,  15  id.,  209;  Newton's  Heirs  v. 
State  Bank,  23  id.,  19. 

2  Hughes  V.  Watt,  36  Ark.,  338. 

3 Miner  v.  Natchez,  4  Sm.  &  Marsh.,  603. 

*Hudgens  v.  Jackson,  51  Ala.,  514;  Smith  v.  Randall,  6  Cal.,  47;  ante, 
§  1086,  note.  See  Reynolds  v.  Hams,  14  Cal.,  667,  where  it  was  held 
that  a  purchaser  would  only  be  protected  where  he  had  paid  the  pur- 
chase money  before  notice. 


JUDICIAL    SALES.  561 

visions  in  respect  to  notice  of  sale  is  required,  in  order  to 
divest  the  title  of  the  judgment  debtor.^ 

§  1098.  Sale  Void  for  Want  of  Proper  Notice.—  In 
Mitchell  V.  Lipe,-  the  sale  was  held  void  under  the  statute 
for  the  want  of  the  notice  prescribed,  even  where  the  judg- 
ment debtor  had  requested  the  sheriff  to  make  the  levy,  it 
being  held  that  such  request  did  not  amount  to  a  waiver  of 
notice.  And  in  Underwood  v.  Jeans,''  the  publication  act- 
ually made  was  acknowledged  to  be  even  more  ample  than 
the  law  required ;  but  the  statutory  manner  of  giving  notice 
being  by  posting  one  copy  in  each  hundred  of  the  county 
ten  days  prior  to  the  day  of  sale,  a  failure  to  prove  the  post- 
ing of  a  copy  of  such  notice  in  one  of  the  hundreds  for 
the  full  time  was  held  fatal  to  the  validity  of  the  sale. 

§  1099.  No  Uniform  Rule  as  to  Notice  of  Sales.— The 
statutes  of  the  several  states,  governing  judicial  sales,  though 
similar,  differ  sufficiently  to  admit  of  different  construction 
by  the  courts.  They  are  also  more  or  less  modified  or 
affected  by  other  statutes,  which  facts  render  it  exceedingly 
difficult  to  deduce,  from  the  authorities  examined,  anything 
like  a  rule  as  to  the  effect  of  an  entire  want  of  notice,  or 
of  insuflBcient  notice  of  a  sale  made  under  judgment  or 
decree  of  court. 

§  1100.  Time  of  Publication. —  Nevertheless,  there  are 
certain  questions  affecting  the  giving  of  notice  of  sale  by 
publication,  which  are  likely  to  arise  in  any  case  where  it 
becomes  necessary  to  give  judicial  construction  to  the  lan- 
guage of  a  statute.  The  time  for  which  the  notice  is  pub- 
lished is  one  of  the  most  important  of  these,  for,  although 

iTrot  V.  McGavock,  1  Yerg.  (Tenn.),  469;  Loyd  v.  Anglin,  7  id.,  428; 
Mitchell  V.  Lipe,  8  Yerg.,  179;  Underwood  v.  Jeans,  4  Harr.  (Del.),  201 ; 
Burton  v.  Wolfe,  id.,  221;  Gernon  v.  Bestick,  15  La,  An.,  697;  Russell 
V.  Dyer,  40  N.  H.,  173.  See  Blair  v.  Compton,  33  Mich.,  414,  where  it  is 
laid  down  that  a  sale  was  void  as  to  the  excess  in  number  of  shares  of 
stock  sold  en  masse,  over  what  was  stated  to  be  the  number  at  the  time, 
though  a  larger  number  had  been  advertised. 

^  Supra,  §  1097. 

3  Supra,  §  1097. 


562  PUBLICATION    OF   NOTICES 

defects  in  this  particular  will  not,  in  every  instance,  prove 
fatal  to  the  title  after  payment  of  the  purchase  money  and 
delivery  of  the  deed,  it  may  be  raised  at  a  time  when  it 
will  serve  to  obstruct  the  perfecting  of  the  purchaser's  title, 
by  furnishing  grounds  for  an  objection  to  the  approval  of 
the  sale. 

§  1 101.  Six  Weeks'  Notice. —  "Where  the  statute  required 
six  weeki  notice  to  be  given,  and  under  this  provision  desig- 
nated the  manner  of  giving  such  notice  to  be  by  fastening 
up  the  same  for  six  successive  weeJcs,  and  by  publication  in 
a  newspaper  once  a  weeTc  for  six  successive  weeks,  the  law 
was  held  to  be  sufficiently  complied  with  by  posting  the 
notice  as  required,  and  by  publication  once  in  eacli  week  of 
the  six,  although  the  full  term  did  not  elapse  between  the 
first  publication  and  the  day  of  the  sale.^ 

§  1 102.  Once  a  Week  for  Three  Months. —  So,  where  a 
statute  requires  the  notice  to  be  published  once  a  week  for 
three  inontlis,  ovfor  three  successive  weeks,  the  law  is  satisfied 
by  an  insertion  in  the  paper  once  in  each  %veek,  as  time  is 
divided,  regardless  of  the  fact  that  a  period  longer  or  shorter 
than  seven  days  intervenes  between  successive  issues  of  the 
paper.- 

§1103.  What  Constitutes  Publication. —  In  Pratt  v. 
Tinkcom,*  where  the  statute  required  six  weeks'  notice  of  a 
sale,  it  was  held  that  the  first  publication,  being  on  the  1st 
day  of  February,  would  not  authorize  a  sale  on  the  10th 
day  of  March,  and  that  the  defect  could  not  be  cured  by 
adjourning  the  sale  and  continuing  the  notice  to  the  lYth. 
It  was  also  decided,  in  the  same  case,  that  papers  sent  to 
the  postoffice,  some  for  transmission  through  the  mails,  and 
others  for  local  deliver}'^,  are  jpuhlished  when  deposited  in 

1  Olcott  V.  Robinson,  21  N.  Y.,  150,  reversing  the  judgment  of  general 
term,  reported  20  Barb.,  143.  See  Nalle  v.  Ftowick,  4  Eand.,  585 ;  EUiott 
V.  Eddins,  24  Ala.,  509. 

2 Rockendorflf  v.  Taylor's  Lessee,  4  Pet.,  349;  Bachelor  v.  Bachelor, 
1  Mass.,  256;  Pearson  v.  Bradley,  48  111.,  250  j  Cass  v.  Bellows,  31  N.  H., 
501. 

3  21  Minn.,  142. 


JUDICIAL   SALES.  563 

the  postofRce,  regardless  of  the  dates  borne  by  the  papers. 
Consequently,  where  five-sixths  of  the  edition,  dated  the 
'25th,  were  issued  on  the  2J},th,  the  publication  would  not  be 
considered  as  of  the  date  when  but  one-sixth  of  the  papers 
were  issued. 

§  1104.  Posting  in  Public  Places. —  In  Sowards  v.  Pritch- 
ett,'  the  important  matter  of  inquiry  was  as  to  what  was 
a  sufficient  comjiliance  with  a  statute  requiring  notice  of  the 
sale  to  be  posted  at  five  public  places  in  the  neighborhood. 
Tavo  copies  of  the  notice  were  posted  at  school-houses,  but 
it  did  not  appear  that  they  were  occupied  at  the  time.  The 
others  were  posted  near  three  different  roads,  but  one  of 
which  was  mentioned  as  a  public  road,  leaving  the  inference 
that  the  other  two  were  private  thoroughfares.  Six  persons 
living  in  the  vicinity  of  the  land  sold  had  never  seen  any  of 
the  notices,  none  of  which  were  posted  about  the  court- 
house, nor  was  publication  made  in  the  county  newspaper. 
But  few  persons  attended  the  sale,  and  the  property  brought 
about  two-thirds  of  its  value.  Under  these  circumstances, 
the  notice  was  held  insufficient,  although,  in  the  same  case, 
it  was  decided  that  mere  shortness  of  the  time  of  publication, 
where  no  period  was  fixed  by  the  decree,  when  taken  alone, 
would  not  warrant  setting  aside  the  sale,  but  might  be  con- 
sidered in  connection  with  the  other  irregularities  and  the 
inadequacy  of  the  price  for  which  the  land  was  sold.- 

137IU.,  517. 

2  See  §§  1128,  1129,  1130,  for  sales  made  by  orders  of  probate  court 
under  certain  circumstances. 


564  PUBLICATION   OF   NOTICES. 


III.    NON-JUDIOIAL   InVOLTJNTAUT   SaLES. 

§  1105.  Strict  Compliance  with  Statute  Required. 

1106.  Tax  Sales. 

1107.  Publication  an  Official  Act. 

1108.  When  State  Printer  Designated. 

1109.  Should  State  the  Amount  Due. 

1110.  Should  Give  Name  of  Tax  Debtor. 

1111.  Time  Fixed  by  Statute  to  be  Closely  Followed. 

1112.  Sale  Held  Void  After  Fifty  Years. 

1113.  Construction  as  to  Time. 

1114.  Three  Successive  Publications  for  Three  Months. 

1115.  During  Three  Successive  Weeks. 

1116.  Should  Commence  After  Tax  Becomes  Due. 

1117.  Form  and  Sufficiency. 

1118.  When  Form  Prescribed  by  Statute. 

1119.  Proof  of  Publication.  ^ 

1120.  Statutory  Mode  of  Proof  Exclusive. 

1121.  Requu'ed  Certificate  Must  be  Certain  in  Statement. 

§  1105.  Strict  Compliance  with   Statute  Required.— 

Involuntary  sales,  made  in  pursuance  of  a  statutory  power, 
without  a  judgment  or  decree  of  court,  are  less  favorably 
considered,  and  the  prerequisites  to  the  exercise  of  the 
power  are  more  rigidly  exacted,  than  where  there  has  been 
an  attempt  to  give  the  property  owner  his  day  in  court,  and 
where  he  has  at  least  had  notice  of  the  institution  of  pro- 
ceedings which  might  eventuate  in  the  sale  of  his  property. 
Titles  acquired  under  non-judicial  involuntary  sales  are 
aided  by  no  presumptions  in  their  favor,  but  must  depend 
for  their  validity  upon  a  strict  compliance  with  the  statutes 
by  which  they  are  authorized.  And  no  statutory  require- 
ment is  regarded  as  of  more  importance  than  that  in  relation 
to  notice  of  sale} 

§  1106.  Tax  Sales. —  The  greater  number  of  sales  of  this 
kind,  which  have  been  the  subject  of  judicial  controversy,  in 
respect  to  the  matter  of  notice,  are  such  as  are  made  to 
satisfy  the  demands  of  the  state  or  municipality  for  unpaid 

1  Seeposf,  §  11§3,  Mortgagee's  Sales. 


NON-JUDICIAL   INVOLUNTARY   SALES.  565 

taxes  on  real  property.  The  manner  of  giving  notice  of 
such  sales,  both  to  tax  debtors  and  to  the  public,  is  by  adver- 
tisement in  newspapers.  Where  this  is  the  mode  designated, 
the  language  of  the  statute  is  mandatory  upon  the  officer 
whose  duty  it  is  to  make  the  sale,  the  vaUdity  of  which 
depends  upon  strict  compliance.^ 

§  1107.  Publication  an  Official  Act. —  The  publication 
of  the  notice  is  an  official  act,  and  the  advertisement  must 
therefore  be  signed  by  the  officer  designated  by  statute  to 
give  the  notice.  It  is  not  enough  that  he  is  the  officer  elect, 
who,  after  the  insertion  of  the  advertisement  in  the  news- 
paper, is  duly  qualified.  Such  subsequent  qualification  will 
not  take  effect  by  relation,  and  clothe  the  act,  performed 
before  the  officer  had  been  thereto  empowered,  with  an 
official  character,  and  so  render  valid  and  binding  a  sale 
made  in  pursuance  of  such  published  notice.^ 

§  1108.  When  State  Printer  Designated.— Where  the 
statute  prescribed  that  the  notice  of  sale  should  be  advertised 
in  a  paper  published  by  the  state  printer,  but  after  the  inser- 
tion of  the  notice  in  such  official  paper,  and  before  the 
expiration  of  the  time  prescribed  for  the  publication,  the 
publisher  of  the  paper  ceased  to  be  the  state  printer,  such 
publication  was  held  insufficient,  and  a  sale  in  pursuance 
thereof,  utterly  void.' 

§1109.  Should  State  the  Amount  Due. — The  notice 
as  published  should  contain  a  correct  statement  of  the 
amount  due,*  the  true  object  of  the  tax,^  an  accurate  de- 
scription of  the  property,®  and  the  name  of  the  tax  debtor.'^ 


1  WUliamsu.  Peyton,  4  Wheat.,  77;  Early  v.  Doe,  16  How.,  610. 
2Langdont;.  Poor,  20  Vt.,  13;  Speai-  v.  Ditty,  9  Vt.,  283;  Broughton 
V.  Journeay,  51  Pa.  St.,  31. 
SBussey  v.  Leavitt,  12  Me.,  378;  Pope  v.  Headen,  5  Ala.,  433. 

4  Eastman  v.  Little,  5  N.  H.,  290;  4  Hill,  92. 

5  Pierce  v.  Richardson,  37  N.  H.,  306;  Langdon  v.  Poor,  supra. 

6  Patrick  v.  Davis,  15  Ark.,  363;  Tallman  r.  White,  2  N.  Y.,  66. 

7  Washington  v.  Pratt,  8  Wheat.,  681 ;  Pierce  v.  Richardson,  37  N.  H., 
306;  Alvord  v.  Collin,  20  Pick.,  418;  Miller  v.  Graham,  17  Ohio  St.,  1. 


566  PUBLICATION   OF   NOTICES. 

§  1 1 10.  Should  Give  Name  of  Tax  Debtor.— The  strict- 
ness of  the  rule  laid  down  with  respect  to  a  statement  of  the 
name  of  the  tax  dehtor,  and  the  amount  of  tJie  tax,  are  both 
fairly  illustrated  in  Eastman  v.  Little.^  There  the  form  of 
notice  followed  was  one  prescribed  by  the  secretary  of  the 
treasury,  who  was  authorized  by  statute  to  estabhsh  the 
necessary  regulations  for  cariying  the  revenue  laws  into 
effect,  yet  for  a  failure  to  state  in  the  advertisement  the 
name  of  the  tax  debtor,  and  the  amount  due  on  each  piece 
of  land  separately,  the  sale  was  declared  to  be  void.^ 

§  1111.  Time  Fixed  by  Statute  to  be  Closely  Followed. 
Howsoever  arbitrarily  the  time  for  the  commencement  and 
continuation  of  the  publication  may  be  fixed  by  statute,  its 
provisions  must  be  closely  followed  in  order  to  divest  the 
title  of  the  tax  debtor.  Accordingly,  where  the  advertise- 
ment Avas  changed  after  the  expiration  of  a  part  of  the  pre- 
scribed period  of  publication,  and  a  new  day  of  sale  fixed, 
even  with  the  consent  of  the  tax  debtor,  the  sale  was  de- 
clared void.''  Nevertheless,  where  a  certain  number  of  days 
are  designated,  the  last  publication  to  be  so  many  days  be- 
fore the  sale,  the  fact  that  the  advertisement  was  published 
after  this  day  would  not  affect  the  validity  of  the  sale  to 
defeat  it  for  non-compliance  with  the  statute.  Neither 
would  it  operate  to  cure  a  failure  to  make  the  publication 
early  enough  to  give  it  the  full  time  prescribed  by  statute, 
between  the  first  and  the  last  day. 

§  1112.  Sale  Held  Yoid  After  Fifty  Years.— In  Farrar 
V.  Eastman,^  decided  in  1833,  with  reference  to  the  vahdity 
of  a  sale  which  took  place  in  1T80,  under  the  provincial  act 
of  26  Geo.  II.,  requiring  forty  days'  notice,  the  tax  for  which 
the  land  was  sold  appeared  to  have  been  voted  only  thir- 
teen days  before  the  date  of  the  tax  deed.     The  court,  with 

1  Supra,  §  1109. 

2  See,  also,  Shimmin  v.  Inman,  26  Me.,  228 ;  Sargent  v.  Bean,  7  Gray, 
125. 

"Scales  V.  Alvis,  12  Ala.,  617. 
no  Me.,  191. 


NON-JUDICIAL   INYOLUNTAET   SALES.  567 

every  inclination  in  the  direction  of  sustaining  a  transac- 
tion of  so  many  years'  standing,  held  the  sale  void,  as  it 
was  impossible,  under  the  circumstances,  that  forty  days' 
notice  could  have  been  o-iven. 

§  1113.  Construction  as  to  Time.—  Where  the  time  pre- 
scribed for  the  publication  is  stated  loosely  as  so  many  days, 
weeks  or  months,  without  specifying  how  long  before  the 
day  of  sale  such  publication  shall  be  completed,  it  will  be 
understood  to  mean  a  continuous  publication  immediately 
preceding  the  sale.  As,  for  example,  where  the  statute  re- 
quired three  m.onihs^  notice,  the  court  construed  this  to 
mean  the  three  successive  months  next  preceding  the  sale- 
And  the  advertisement  being  pubhshed  during  the  month 
of  December,  omitting  January,  but  was  afterwards  inserted 
during  the  months  of  February  and  March,  this  was  held 
insufficient  to  authorize  a  sale  in  April.^ 

§  1114.  Three  Successive  Publications  for  Three 
Months. — "Three  successive  publications  in  a  newspaper, 
three  months  prior  to  the  sale,"  was  held  to  require  that  the 
last  insertion  should  be  three  months  prior  to  the  day  of 
sale.^ 

§  1115.  During  Three  Successive  Weeks. —  Where  the 
notice  was  required  to  be  published  ''  during  three  succes- 
sive weeks,"  this  was  held  to  mean  three  full  weeks,  or 
twenty-one  days  from  the  first  publication.^ 

§  1 116.  Should  Commence  After  Tax  Becomes  Due. — 
A  further  important  requisite  as  to  time  is,  that  the  pubh- 
cation  should  commence  after  the  tax  becomes  due ;  and 
when  the  statute  requires  a  return  to  be  made  of  a  list  of 
delinquents,  and  the  intervention  of  a  certain  time  between 
such  return  and  the  publication  of  the  notice,  the  statutory 
period  must  have  elapsed,  in  order  to  render  the  publication 
sufficient  to  support  a  title  acquired  under  the  sale.* 

1  Delogney  v.  Smith,  3  La.,  418. 
2Bussey  v.  Leavitt,  12  Me.,  378. 

3  Francis  v.  Non-is,  2  IVIiles,  150;  Pennell  v.  Monroe,  30  Ark.,  661. 

4  Rockendorff  v.  Taylor,  4  Pet.,  849;  Early  v.  Doe,  16  How.,  610. 


568  PUBLICATION   OF   NOTICES. 

§  1117.  Form  and  Sufficiency. —  The  form  of  the  notice 
of  sale  is  generally  prescribed  by  statute ;  but  where  there 
is  no  such  statutory  form,  the  language  of  the  published 
notice  should  be  sufficiently  clear  and  unequivocal  to  con- 
vey the  necessary  information  to  both  tax  debtor  and  the 
pubhc.  If  it  is  so  expressed  as  to  contain  all  the  state- 
ments required  by  statute,  it  will  be  sufficiently  formal, 
however  inartificially  it  may  be  drawn.^ 

§  1118.  When  Form  Prescribed  by  Statute. —  It  has 
been  laid  down  by  a  very  able  text  writer,  that  where  a  cer- 
tain form  of  notice  is  prescribed  it  must  be  "  strictly,  if  not 
literaUy ,  followed."  ^  This  statement  of  the  doctrine  is  ques- 
tioned by  Judge  Cooley,  wiio  denies  that  the  law  ever  re- 
quires a  literal  adhesion  to  forms.''  The  conclusion  reached 
by  the  last  mentioned  author  seems  to  be  supported  by 
much  the  better  reason, 

§  1119.  Proof  of  Publication. —  The  proof  of  publica- 
tion ordinarily  required  is  the  affidavit  of  the  printer  or  pub- 
lisher of  the  newspaper  containing  the  advertisement.  If 
upon  its  face  it  appears  insufficient,  either  in  point  of  time 
of  publication,  or  contents  of  the  notice,  parol  proof  will,  in 
general,  be  held  inadmissible  for  the  purpose  of  supplying 
the  deficienc}^  or  explaining  the  omission."* 

§  1120.  Statutory  Mode  of  Proof  Exclusive. —  Sales  of 
this  kind,  being  in  the  nature  of  forfeitures,  are  not  favored 
by  the  courts,  in  the  proof  of  compliance  with  the  statute. 
As  where  the  law  required  the  delinquent  list  and  the  no- 
tice to  be  recorded  for  the  purpose  of  perpetuating  the  evi- 
dence of  the  time  of  publication,  this  means  of  showing  a 
compliance  with  the  statute  was  held  to  be  exclusive  of  all 
others,  as  against  those  claiming  under  the  tax  sale,  who 

1  Chandlers.  Spear.  23  Vt.,  388;  Hobbs  v.  Clements,  32  Me.,  67. 

2  Blackwell  on  Tax  Titles,  223. 

3  Cooley  on  Taxation,  337,  n.  2. 

4  Finch  V.  Pinckard,  5  111.,  69;  Nelson  v.  Pierce,  6  N.  H.,  194;  People 
V.  Highway  Com'rs,  14  JkDch.,  528;  Love  joy  v.  Lunt,  48  Me.,  377;  Sex- 
ton V.  Rhames,  13  Wis.,  99. 


NON-JUDIOIAL   INVOLUNTAET   SALES.  569 

would  not  be  permitted  to  prove  by  matters  dehors  that 
the  notice  had  been  published  for  the  statutory  time ;  al- 
though one  claiming  adversely  to  the  tax  title  would  not  be 
so  concluded.^ 

§  1121.  Required  Certificate  Must  be  Certain  in  State- 
ment.—  An  oiRcial  certificate  which  the  law  designates  as 
the  proper  means  of  authenticating  the  publication  of  a  no- 
tice, must  be  unequivocal  and  certain  in  its  statements.  As, 
where  the  county  auditor  was  required  to  publish  notices 
by  posting  them  in  certain  localities,  and  his  certificate 
stated  that  he  had  delivered  copies  of  the  notices  to  another 
oflBcer,  who,  he  believed,  had  posted  them  in  the  places  re- 
quired by  law,  the  certificate  was  held  fatally  defective,  and 
its  omissions  could  not  be  supplied  by  parol  evidence.-  And 
where  the  treasurer  failed  to  authenticate  a  copy  of  the 
printed  advertisement,  as  required  by  law,  this  omission,  it 
was  held,  rendered  the  sale  void.^ 

1  Kellogg  V.  McLaughlin,  8  Oliio,  114. 

2  Doe  V.  Sweetser,  2  Ind.,  649. 

3 Flint  V.  Sawyer,  30  Me.,  226;  Hill  v.  Mason,  38  id.,  461. 


570  PUBLICATION    OF    NOTICES. 


TV.  Miscellaneous  Pkoceedings. 

§  1123.  General  Remarks. 

1123.  Contract  for  Public  Improvements. 

1124.  Special  Assessments. 

1125.  Notice  of  Intention  to  Order  Improvements. 

1126.  Notice  of  Opening  Streets. 

1127.  Eminent  Domain. 

1128.  Sales  by  Guardians  and  Curators. 

1129.  Executor's  Sale. 

1130.  Sold  for  Paying  Debts  of  Deceased. 

1131.  Executor's  Notice  —  How  Addi-essed. 

1132.  Meeting  to  Divide  Township. 

1133.  Mortgagee's  Sales. 

1133a.  Notice  to  Redeem  from  Tax  Sale. 

1134.  Matters  Noticed  Elsewhere. 

§  1122.  General  Remarks. —  There  are  proceedings  by 
which  the  proprietory  rights  of  individuals  are  affected, 
notice  of  which  may  be  given  by  publication  in  a  news- 
paper or  by  posting  copies  in  certain  designated  localities. 
But  in  order  to  give  such  publication  the  effect  of  actual 
notice  to  the  party  whose  rights  are  affected  by  the  pro- 
ceeding, regardless  of  whether  he  reads  the  advertisement 
or  not,  it  is  necessary  that  this  mode  of  notification  should 
be  authorized  by  statute,  and  that  the  statute  by  which  it  is 
authorized,  being  in  derogation  of  common  law,  should  be 
strictly  construed  and  closely  pursued.  When  the  proceed- 
ing closely  resembles  one  of  a  judicial  character,  in  the 
sense  that  there  is  a  hearing  and  adjudication  before  a  judi- 
cial tribunal,  the  strictness  of  construction  seems  to  be  some- 
what relaxed  for  reasons  heretofore  stated ;  ^  but  when  the 
ultimate  purpose  of  the  proceeding  is  to  divest  the  title  of 
the  property  owner  by  forfeihire,  without  giving  him  an 
opportunity  to  be  heard  in  defense  of  his  rights,  the  strictest 
observance  of  statutory  requirements  is  exacted,  in  order  to 
render  such  notice  effectual. 

See  ante,  Part  II. 


MISCELLANEOTJS   PEOCEEDINGS.  571 

§  1123.  Contract  for  Public  Improyements. —  Among 
tke  matters  which  may  be  constructively  brought  to  the 
knowledge  of  those  whose  rights  are  to  be  affected,  is 
the  letting  of  contracts  for  the  grading  or  other  improve- 
ment of  streets,  alleys  and  other  public  thoroughfares, 
where  the  cost  of  such  improvement  is  to  be  made  a  charge 
upon  adjacent  property.  These  charges,  though  a  species 
of  taxation,  are  not  generally  so  denominated,  but  ar^ 
known  by  the  distinguishing  appellation  of  "special  assess- 
ments," ^  and  where  notice  prior  to  such  assessment  is  re- 
quired to  be  published,  the  assessment  wiU  only  be  valid 
when  there  has  been  a  substantial  compliance  with  the  stat- 
ute in  this  and  every  other  important  particular.- 

§  1124.  Special  Assessments. —  The  rule  governing  no- 
tice of  involuntary  sales,  made  without  the  judgment  of  a 
court,  will  generally  be  found  applicable  to  special  assess- 
ments.^ 

§  1125.  Notice  of  Intention  to  Order  Improvements. — 
In  Haskell  v.  Bartlett,*  under  a  statute  requiring  publication 
of  a  notice  of  intention  to  order  improvements  upon  streets, 
in  the  paper  having  the  city  and  county  printing,  for  ten 
days  successively,  excepting  Sunday ;  ^  and  where  there  was 
another  statute  in  force  requiring  the  city  printing  to  be  in 
a  paper  published  within  the  city,"  the  court  had  occasion  in 
construing  the  two  statutes  to  define  the  word  "  published.'' 
The  paper  in  which  the  notice  was  printed,  published  daily, 
both  morning  and  evening  editions, —  the  morning  edition 
for  circulation  in  the  city,  and  the  evening  edition  for  the 
country.  The  notice  appeared  in  the  morning  edition ;  but 
for  two  days  of  the  ten  this  edition  was  not  printed,  and  it 

1  Emery  v.  Gas  Co.,  28  Cal.,  345;  Argenti  v.  San  Francisco,  16  Cal., 
255 ;  People  v.  Whyler,  41  Cal.,  351.  City  paying  for  opening  streets,  20 
La.  An.,  497;  Garrett  v.  St.  Louis,  25  Mo.,  505. 

2  2  Dillon,  Munic.  Corp.,  §  605,  and  cases  cited. 

3  Ante,  part  III  of  tliis  chapter. 
434  Cal.,  281. 

5  Cal.  Stats.,  1862,  p.  403,  §  25. 

6  Cal.  Stats.,  1856,  pp.  163-4,  §§  68-9. 


572  PUBLICATION   OF   K0TICE8. 

did  Dot  appear  that  the  evening  edition  containing  the  no- 
tice for  these  two  days  was  circulated  in  the  city.  The  pub- 
lication was  held  insufficient,  as  the  paper,  to  he  published 
within  the  city,  should  have  been  circulated  as  well  as 
printed  there. 

§  1126.  Notice  of  Opening  Streets. —  Where  the  statute 
required  notice  of  the  opening  of  streets  to  be  published  in 
two  papers  in  the  city,  in  order  to  afford  owners  of  lots  an 
opportunity  to  make  application  for  damages,  there  being 
but  one  paper  published  in  the  city,  it  was  held  that  the  in- 
sertion of  the  notice  in  that  for  the  required  time,  together 
with  personal  notice  to  the  owner  of  the  lot  in  question,  was 
a  sufficient  compliance  with  the  statute  to  enable  the  city  to 
recover  the  assessments.^  It  would  probably  have  been  held 
the  same  way  had  the  statute  requiring  notice  had  any  other 
object  than  the  one  declared.  It  is  apparent  that  in  this 
case  there  was  a  sufficient  excuse  for  not  pursuing  the  letter 
of  the  statute  strictly,  when  it  was  followed  in  its  spirit,  as 
closely  as  possible  under  the  circumstances.^ 

§  1127.  Eminent  Domain. —  Where  the  state  or  nation, 
or  one  acting  under  powers  delegated  by  proper  authority, 
in  the  exercise  of  the  right  of  eminent  domain  undertakes  to 
condemn  private  property  to  public  use,  it  must  not  only  be 
done  in  strict  subordination  to  the  constitutional  provision 
requiring  ^ust  compensation  to  be  paid  to  the  private  owner, 
but  the  power  of  condemnation  must  be  exercised  in  con- 
formity to  the  statute  by  which  it  is  authorized.  Proceed- 
ings for  this  purpose  vary  considerably  in  different  states, 
being  to  a  greater  or  less  degree  judicial  in  their  character. 
But  in  aU,  notice  in  some  form  or  other,  to  private  owners,  is 
an  essential  preliminary.  Where  the  owner  of  the  land  to 
be  taken  is  a  non-resident  of  the  state  in  which  the  same  is 
situated,  he  is  generally  notified  by  publication.  In  cases 
of  this  kind  the  same  strict  construction,  and  close  following 

1  Darlington  v.  Common  wealth,  41  Pa.  St.,  68. 

2  Wood  V.  Blanchard,  19  Ei.,  38. 


MISCELLANEOUS    PROCEEDINGS.  5Y3 

of  the  statute,  is  required,  as  in  case  of  involuntary  sales 
without  judgment  or  decree ;  ^  but  a  failure  to  give  notice, 
as  required  by  statute,  could  not  be  taken  advantage  of, 
when  all  the  parties  in  interest  voluntarily  appeared  at  the 
time  and  place  for  which  the  notice  should  have  been  given.'- 

§  1128.  Sales  by  Guardians  and  Curators. —  There  are 
other  proceedings  which  have  for  their  ultimate  object  the 
sale  of  property  by  those  acting  in  a  fiduciary  capacity,  as 
guardians  of  infants  or  insane  persons,  and  administrators 
or  executors  of  estates  of  decedents.  An  order  of  sale  is 
requh'ed  in  such  cases,  and  is  in  general  only  granted  after 
a  hearing,  of  which  there  must  be  notice  given  by  publica- 
tion or  otherwise.  This  notice,  when  by  publication,  being 
of  a  proceeding  somewhat  in  the  nature  of  an  adjudication, 
is  governed  to  a  considerable  extent  by  the  rules  applicable 
to  the  service  of  original  process  in  the  same  manner.  It 
has,  nevertheless,  been  held  that  the  title  of  a  purchaser  at 
such  sale  would  not  be  affected  by  a  failure  to  publish  the 
notice  of  application  for  "license  to  sell,"  for  full  four 
weeks,  as  prescribed  by  statute." 

§1129.  Executor's  Sale. —  Where  the  statute  required 
notice  of  executor's  sale  to  be  by  posting  copies  in  three 
public  places  in  the  county,  "or  by  publication  in  a  news- 
paper, if  the  judge  should  so  order,"  there  being  no  evi- 
dence of  the  posting  of  the  copies  as  required  by  statute, 
and  no  order  for  the  publication  in  a  newspaper,  proof  of 
the  publication  having  been  made  in  a  newspaper  Avas  held 
insufficient  to  warrant  the  sale.^ 

§1130.  Sold  for  Paying  Debts  of  Deceased.— There 
must  also  be  strict  compliance  with  the  statutes  authorizing 
the  sale  of  real  estate  of  deceased  persons,  by  executors  or 

iHarbeck  v.  Toledo,  11  Ohio  St.,  219;  Darlington  v.  Commonwealth, 
41  Pa.  St.,  68;  Kidder  v.  Peoria,  29  111.,  77;  Specht  v.  Detroit,  20  Mich., 
168;  Baltimore  v.  Bouldin,  23  Md.,  328. 

2  East  Saginaw  &  St.  Clair  R.  R.  Co.  v.  Benham,  28  Mich.,  459. 

3  Woods  V.  Monroe,  17  Mich.,  238. 

<HaUeck  v.  Moss,  17  Cal.,  339;  Haynes  v.  Meeks,  10  id.,  110. 


574:  PUBLICATION    OF   NOTICES. 

administrators,  for  the  purpose  of  paying  the  debts  of  de- 
ceased, or  otherwise  fulhlling  the  duties  of  administration, 
Avith  respect  to  the  time  for  which  notice  is  required  to  be 
published,  to  all  persons  interested  to  appear  and  show 
cause,  etc.,  and  such  time,  when  prescribed  by  statute,  can- 
not be  abbreviated  by  order  of  the  court  so  as  to  authorize  a 
sale.^ 

§  1131.  Executor's  Notice  —  How  Addressed. —  Pub- 
lished notices  cannot  be  addressed  by  executors  and  adminis- 
trators, specifically  by  name  to  all  those  who  are  to  be 
affected,  for  the  reason  that  they  are  so  numerous  as  to 
render  such  a  course  impracticable,  even  where  the  personal 
representative  was  cognizant  of  all  their  names.  It  has 
accordingly  been  held  that  a  notice  published  by  an  ex- 
ecutor, addressed  "  to  the  heirs-at-law,  next  of  kin,  and  all 
other  persons  interested  in  the  estate  of,"  etc.,  was  sufficient.^ 

§  1132.  Meeting  to  Divide  Township. — Where  notice  of 
the  time  and  place  of  meeting  to  divide  the  townships  was 
required  by  statute  to  be  published  three  weeks  hefore  the 
time  of  meeting,  it  was  held  that  three  publications,  made 
within  the  three  weeks  next  preceding  the  time  of  meeting, 
was  not  a  comphance  with  the  statute,  as  the  first  publica- 
tion was  intended  to  be  full  three  weeks  prior  to  the  meet- 
ing.' But  where  "  sixty  days'  notice "  was  required  to  be 
published  of  calls  for  instahnents  of  stock  in  a  corporation, 
one  insertion  sixty  days  prior  to  the  day  fixed  was  held  suf- 
ficient.* 

§  1133.  Mortgagee's  Sales. —  There  are  also  sales  made 
in  pursuance  of  published  notice  where  the  pubhcation  is 
made  according  to  the  terms  of  a  contract  between  the  par- 
ties interested,  as  a  mortgage  with  power  of  sale  without 
judicial  foreclosure  or  deed  of  trust  in  the  nature  of  a  mort- 

iTownsend  v.  Tallant,   33  Cal.,  45;  Corwin  u.  Merrett,  3  Barb.,  341; 
Havens  v.  Sherman,  42  Barb.,  636;  Gibson  v.  Roll,  30  111.,  173. 
2  Wells  V.  Child,  12  AUen,  330. 
^In  re  North  Whitehall,  47  Pa.  St.,  156, 
4  Andrews  v.  O.  &  M.  R.  R.  Co.,  14  Ind.,  169^. 


MISCELLAIJEOUS    PKOCEEDIXGS.  575 

gage  with  power  of  sale.  The  time  and  place  of  sale,  as 
well  as  the  time  for  which  the  notice  shall  be  pubhshed, 
being  fully  provided  for  in  the  instrument,  it  is  only  requi- 
site that  the  provisions  of  the  contract  shall  be  complied 
with,  in  order  to  render  the  sale  valid  and  binding.^ 

§1134:.  Matters  Noticed  Elsewhere. —  There  are  other 
matters  which  may  be  brought  to  the  notice  of  parties  by 
publication  in  a  newspaper,  by  which  their  rights  or  liabili- 
ties may  be  enlarged  or  restricted  with  reference  to  their 
transactions  with  those  giving  the  notice ;  as  a  dissolution 
of  partnership,  regulations  by  common  carriers,  restricting 
their  liabilities  as  such,  and  the  like ;  but  these  notices,  when 
published,  must  be  satisfactorily  brought  home  to  the  par- 
ties to  be  affected,  by  other  evidence  than  the  mere  fact  of 
publication.  For  this  reason  they  are  not  treated  here,  but 
are  noticed  elsewhere.- 

1  Pratt  V.  Tinckom,  21  Minn.,  143.     See  Jones  on  Mort.,  §  1827  et  seq.; 
§  1821  et  seq. 
-  See  ante,  parts  I  and  II. 


CHAPTEH  XII. 

PRACTICE  AND  PLEADING. 

I.  Original  Process. 
II.  Notice  of  Trial. 

III.  Notice  of  Motions  and  Other  Interlocutory  Proceedings 
rv.  Notice  of  Appeal. 
V.  Notice  of  Taking  Depositions. 
VI.  Notice  to  Produce  Books  and  Papers. 
Vn.  Service. 
vni.  The  Return. 
IX.  Pleading. 

I.  Original   Process, 

§  1135.  General  Nature  of  Modern  Summons. 

1136.  Importance  of  Due  Service. 

1187.  When  Personal  Notice  Required. 

1138.  Rule  Applies  to  AU  Judicial  or  Quasi  Judicial  Proceedings. 

1139.  Assessment  of  Damages  to  Property. 

1140.  Decree  in  Chancery  —  Summary  Proceedings. 

1141.  Judgment  Against  Sureties. 

1142.  Divorce  and  Alimony. 

1143.  Justice  of  Peace. 

1144.  Actions  In  Rem. 

1145.  Annulling  Certificate  of  Purchase. 

1146.  Knowledge  WiU  Not  Excuse  Notice. 

1147.  Must  be  Written  or  Printed. 

1148.  Must  Conform  to  Statute. 

1149.  Should  State  Time  and  Place. 

1150.  Where  But  One  Cause  of  Action  Described. 

1151.  Scire  Facias. 

1152.  Should  Contain  the  Name  of  Defendant. 

1153.  Omission  of  Name  Held  Immaterial, 

1154.  Venue. 

1155.  Immaterial  Variations  and  Omissions. 

1156.  Requirements  of  Different  States  as  to  Certainty  of  Summons. 

1157.  The  "  Purpose  "  to  be  Stated. 

1158.  Infant  Defendants. 

1159.  When  Returnable. 

1160.  Substantial  and  Technical  Defects, 

1161.  Jurisdiction. 


ORIGINAL   PKOCESS.  Oi  i 

§  1135.  General  Nature  of  Modern  Summons. —  Wluit- 
ever  be  the  wording  or  the  technical  name  of  the  instrument 
by  which  a  person  is  advised  of  the  pendency  of  a  civil  suit 
against  him;  whether  it  be  mandator}^  m  its  terms  to  the 
officer  charged  with  its  service,  bidding  him  to  smiimon  the 
party  to  he  and  appea?',  etc.,  or  is  couched  in  language  merely 
suitable  for  the  conveyance  of  information  to  the  defend- 
ant, advising  liim  that  unless  he  appear^  etc.,  judgment  will 
be  taken  against  him,  it  is  still,  in  effect,  a  notice,  and  nothing 
more,  though  it  may  be  styled  a  writ.  It  no  longer  serves 
the  purpose  of  the  ancient  original  writ  further  than  to 
inform  the  defendant  of  the  pendency  of  the  action,  and 
afford  him  an  opportunity  to  appear  and  defend.  In  some 
of  the  states  the  original  process  by  which  the  court  obtains 
jurisdiction  of  the  defendant  is  no  longer  styled  a  writ  of 
summons,  but  is  called  simply  a  notice.^  And  where  this 
change  has  been  adopted,  the  notice  is  found  to  subserve  all 
the  purposes  for  which  a  writ  will  be  found  necessary,  when 
it  is  not  desired  to  place  the  defendant  under  personal 
restraint. 

§  1136.  Importance  of  Due  Service. —  This  process,  be- 
ing first  in  order,  is  also  of  primary  importance  in  the 
institution  of  a  suit  either  at  law  or  in  equity ;  for  its  due 
service,  actually  or  constructively,  is  necessary  to  give  the 
court  jurisdiction  either  of  the  defendant,  in  personal  actions, 
or  of  the  thing,  in  actions  in  rem.- 

§  1137.  When  Personal  Notice  Required.— Where  the 
object  of  the  action  is  to  obtain  a  judgment  against  the  de- 
fendant upon  which  an  execution  may  issue  to  be  levied 
generally  of  his  goods  and  chattels,  or  of  his  property,  per- 
sonal, real  and  mixed,  it  is  necessary  at  common  law  that 

1  Code  of  Iowa  (1873),  §  2599,  p.  441. 

2  The  Globe,  2  Blatch.  Ct.  Ct.,  427;  Pagett  v.  Curtis,  15  La.  An.,  451; 
Pomeroy  v.  Betts,  31  Mo.,  419;  Kehler  v.  Jack.  Manuf.  Co.,  55  Ga.,  039. 
But  where  the  court  has  found  that  proper  notice  was  given,  the  ques- 
tion cannot  be  raised  in  another  proceeding.  Estate  of  Palomares,  63 
Cal.,  402. 

37 


578  PKACTICE   AND    PLEADING. 

there  should  be  a  pei^onal  notice,  citation,  summons  or  sub- 
poena, or  that  tlie  defendant  should  voluntarily  appear  to 
the  action.  In  cases  of  this  character,  such  notice  or  appear- 
ance is  indispensable  to  the  jurisdiction  of  the  court.^ 

§  1138.  Rule  Applies  to  All  Judicial  or  Quasi  Judi- 
cial Proceedings. —  This  is  true  of  every  proceeding  of  a 
judicial  nature,  to  which  there  are  two  or  more  parties,  ex- 
cept where  there  are  statutory  provisions  authorizing  proc- 
ess other  than  personal.  AU  the  parties  are  entitled  to  a 
hearing  before  judgment  can  be  legally  pronounced  against 
them.  Of  this  they  could  have  no  assurance,  if  they  were 
not  notified  of  the  pendency  of  the  proceedings  against 
them.  Without  such  notice,  then,  as  is  imparted  by  the 
original  process  issuing  out  of  a  court  or  other  judicial  tri- 
bunal, any  judgment  rendered  against  one  or  more  of  the 
parties  would  not  only  be  erroneous,  but,  in  general,  abso- 
lutely void.' 

§1139.  Assessment  of  Damages  to  Property.^ — So, 
where  a  commissioner  of  highways  instituted  proceedings 
under  the  provisions  of  a  statute  of  the  state  of  iSI"ew  York, 
for  the  re-assessment  of  damages  to  the  property  of  defend- 
ant, by  reason  of  the  necessary  improvement  of  a  public 
thoroughfare,  it  was  held  that  the  parties  whose  proprietory 
rights  were  affected  by  the  proceeding  w^ere  entitled  to  be 
heard,  and  hence  were  entitled  to  due  notice  of  such  pro- 
ceeding." 

1  Gray  v.  Hawes,  8  Cal.,  562;  Cooper  v.  Smith,  25  Iowa,  2G9;  Wilson  tJ. 
Johnson,  30  Tex.,  499. 

2  Judah  V.  Stephenson,  10  Iowa,  493;  IMadden  v.  Fielding,  19  La.  An., 
505 ;  MitcheU  v.  Gray,  18  Ind.,  123:  Klemm  v.  DeAves,  28  111.,  817 ;  Goudy 
V.  Hall,  30  111.,  109;  Penobscot  R.  R.  Co.  v.  Weeks,  52  Me.,  456;  Brace 
V.  Cloutman,  45  N.  H.,37;  Oswald  v.  Grey,  29  Eng.  L.  &Eq.,  85;  Peters  w. 
Newkirk,  6  Cow.,  103;  Copeland  v.  Directors  of  Mining  Co.,  33  Mich.,  2 
Mitchell  V.  Runkle,  25  Tex.  Supp.,  132;  Sunpson  v.  Knight,  12  Fla.,  144 
Falconer  v.  Montgomery,  4  Dall.,  232;  CroweU  v.  Davis,  12  Met.,  293 
Ballitt  V.  Musgrave,  3  Carr.  &  Kir.,  31 ;  Craig  v.  Hawkins,  Hardin  (Ky.), 
46;  Cobbv.  Wood,  32  Me.,  455;  Curtis  v.  Sacramento,  64  Cal.,  102. 

^^ People  V.  Tallman,  36  Barb.,  222;  Cox  v.  Mathews,  17  Ind.,  367;  The 
R.  R.  Tax  Case,  8  Saw.,  288,    A  policeman  against  whom  cliarges  are 


ORIGINAL  PROCESS.  579 

§  1140.  Decree  in  Chancery  —  Summary  Proceedings. 

So,  also,  has  it  been  uniformly  held  that  a  decree  in  chan- 
cery could  not  be  rendered  against  a  party  defendant  who 
had  not  been  cited  or  notified  to  appear.^  And  whenever  a 
person's  rights  are  to  be  affected  by  a  summary  proceeding 
or  motion  in  court,  he  must  be  notified,  in  order  that  he 
may  appear  and  protect  his  interests.-  But  there  are  cer- 
tain circumstances  where  a  preliminary  injunction  may  be 
obtained  without  notice  of  the  application.'' 

§  1141.  Judgment  Against  Sureties. —  So  where  it  was 
sought  to  obtain  judgment  against  the  sureties  on  a  forth- 
coming bond,  it  was  held  that,  in  the  absence  of  notice  to 
such  sureties,  any  judgment  obtained  against  them  would 
be  an  absolute  nullity,  for  the  want  of  jurisdiction,  legally 
obtained,  of  the  parties  against  whom  the  judgment  was 
rendered.^ 

§  1 1 42.  Divorce  and  Alimony. —  It  has  also  been  held  that, 
in  an  action  for  divorce,  or  for  alimony  incident  to  a  decree 
of  divorce,  a  personal  judgment  for  such  alimony  could  not 
be  had  against  a  citizen  of  another  state  without  first 
obtaining  jurisdiction  of  such  non-resident  party  by  the 
service  of  process  upon  him  personally,  or  according  to  a 
mode  recognized  as  the  legal  equivalent  of  such  personal 
service,  within  the  territorial  jurisdiction  of  the  court  ren- 
dering the  judgment.  Constructive  notice,  by  publication  of 
summons,  will  not  be  sufficient,  even  where  the  decree  of 
divorce  itself  may  be  rendered  upon  such  substituted  process.' . 

§  1143.  Justice  of  Peace.— Nothing  need  be  said  in 
support  of  a  rule  so  salutary.     Every  variation  or  modifica- 

Ijreferred  by  any  one  except  a  commissioner  is  entitled  to  notice. 
McDermott  v.  Board  of  Police,  25  Barb.,  635. 

1  Morris  r.  Bailey,  15  La.  An.,  2;  Elee  v.  Wait,  28  HI.,  70. 

2Greorge  v.  Sliddough,  62  Mo.,  549. 

3 Eureka,  etc.,  Co.  v.  Superior  Court,  etc.,  5  West  Coast  Rep.,  179. 

< Roach  V.  Barnes,  33  Mo.,  319.  But  sureties  are  not  always  entitled 
to  notice  before  judgment  may  be  entered  against  them.  Farmer  v. 
Stewart,  2  N.  H.,  97. 

5  Beard  v.  Beard,  21  Ind.,  321. 


580  PRACTICE    AND   PLEADING. 

tion  of  its  requirements  needs  justification  upon  tlie  strongest 
grounds  of  necessity.  Its  application  must  be  alike  to  all 
proceedings  of  a  judicial  character,  whether  before  courts 
of  general  or  limited  jurisdiction.  It  is  equally  necessary 
to  an  impartial  administration  of  justice  in  courts  of  record 
and  in  the  trial  of  causes  before  justices  of  the  peace.^ 

§1144.  Actions  in  Rem. —  The  necessity  of  personal 
notice  to  the  defendant  is  not  confined  to  cases  where  a 
personal  judgment  is  sought.  Where  the  property  of  de- 
fendant has  been  attached,  except  in  those  cases  where  the 
statute  provides  for  notice  by  publication,  the  defendant  is 
entitled  to  personal  notice,  not  only  of  the  pendency  of  the 
suit,  but  of  the  attachment  of  his  property.  The  object  of 
the  notice  is  to  enable  him  to  appear  and  plead,  as  well  to 
the  affidavit  of  attachment  as  to  the  merits  of  the  claim  or 
demand,  and  judgment  should  not  be  given  against  him 
without  satisfactory  proof  of  such  notice.- 

§1145.  Annulling  Certificate  of  Purchase. —  So,  in  a 
suit  under  a  statute  of  the  state  of  California  for  the  pur- 
pose of  annulling  a  certificate  of  purchase  of  land  sold  by 
the  state  upon  a  credit,  and  the  purchaser  had  failed  to 
meet  the  deferred  payments,  though  the  object  was  not  to 
obtam  a  personal  judgment  against  the  delinquent  pur- 
chaser, still,  as  the  statute  had  provided  no  substituted 
service  in  an  action  of  that  sort,  it  was  held  that  personal 
process  was  necessary  to  give  the  defendant  his  day  in 
court.' 

§  1146.  Knowledge  Will  Not  Excuse  Notice. —  The  mere 
fact,  however,  that  the  defendant  has  been  personally  noti- 
fied of  a  suit  brought  against  him,  will  not  always  be  a 
sufficient  service  of  process  upon  which  to  predicate  a  judg- 
ment.    Mere  cognizance  of  the  existence  of  the  action  is 

iCase  V.  Hannahs,  2  Kan.,  490;  Johnson  v.  Baker,  38  HI.,  98;  Mitchell 
V.  Eunkle,  25  Tex.  Supp.,  132;  People  v.  Bacon,  18  Llich.,  247;  Alex- 
ander V.  Quigley's  Ex'rs,  2  Duv.  (Ky.),  399. 

2  Simpson  v.  Knight,  12  Fla.,  144. 

3  People  V.  Herman,  45  Cal.,  689. 


ORIGINAL   PEOCESS.  581 

not  a  notice,  in  the  legal  sense,  by  which  a  party  may  be 
subjected  to  the  jurisdiction  of  a  court  so  as  to  give  validity 
to  a  judgment  rendered  against  him.^ 

§  1147.  Must  be  Written  or  Printed. — Unless  the  formal 
requisites  of  the  original  process  are  expre^^ly  waived  by 
the  defendant,  such  process  is  universally  required  to  be 
written  or  printed.  Mere  verbal  notification  has  never  been 
held  sufficient  to  require  the  appearance  of  the  party  sum- 
moned to  answer  either  civilly  or  criminally .- 

§  1148.  Must  Conform  to  Statute. —  As  to  what  the 
written  or  printed  notice  should  contain,  it  may  be  stated 
generally,  as  such  matters  are  regulated  by  statute,  that 
whether  the  process  be  for  actual,  personal  service,  or  for 
constructive  service  by  pubhcation,  it  must  conform  substan- 
tially to  the  requirements  of  the  statute  by  which  it  is 
authorized.^ 

§  1149.  Should  State  Time  and  Place. —  It  is  universally 
requisite,  however,  that  the  original  process  should  state  the 
time  and  place  of  trial  with  substantial  correctness,  and  with 
reasonable  certainty.  It  was  accordingly  held  that  where 
judgment  was  rendered  upon  an  original  notice,  which  did 
not  state  the  time  and  place  when  and  where  defendant  was 
required  to  appear  and  defend  it,  was  not  binding  upon  such 
defendant,  and  could  be  successfully  attacked  in  a  collateral 
proceeding.'' 

§  1150.  Where  But  One  Cause  of  Action  Described. — 
It  has  also  been  held,  where  a  summons  was  issued  and 
served  upon  a  party  requiring  him  to  answer  to  fourteen 
different  suits,  upon  as  many  promissory  notes,  and  the 
process  described  with  reasonable  certainty  one  of  such 
notes,  and  mentioned  the  others  as  "  thirteen  similar  notes," 
that  the  process  was  good  only  as  to  the  one  note  described, 


1  Peabody  v.  Phelps,  9  Cal.,  213. 

21  Tidd's  Prac.,  109  et  seq.;  Whittaker's  N.  Y.  Prac.,  93. 

3Karr  v.  Karr,  19  N.  J.  Eq.,  427. 

<  Kitsmiller  v.  Kitchen,  24  Iowa,  163. 


582  PRACTICE   AND   PLEADING. 

and  that  judgment  on  the  thirteen  others  would  be  set  aside 
on  a  motion  alleging  the  want  of  a  legal  summons.* 

§1151.  Scire  Facias. —  A  judgment  on  a  scire  facias^ 
served  without  the  citation  and  copy  of  the  petition  re- 
quired by  statute,  on  the  administrator  of  a  deceased  de- 
fendant, who  was  not  served  with  process  in  his  life-time, 
was  held  to  be  erroneous.^ 

§  1152.  Sliould  Contain  the  Name  of  Defendant. —  A 
further  essential  requisite  to  a  good  and  sufficient  summons 
is,  that  it  should  contain  the  name  of  the  party  served.  Ac- 
cordingly, it  was  held,  where  a  summons  against  several 
joint  defendants  did  not  contain  the  names  of  all  those 
served,  it  was  fatally  defective.^ 

§  1153.  Omission  of  Name  Held  Immaterial. —  On  the 
other  hand,  it  was  held  in  another  case,  under  a  different 
statute,  that  the  omission  to  insert  in  a  summons,  served 
upon  one  of  several  defendants,  the  name  of  the  co-defend- 
ants first  served,  except  as  the  same  was  by  the  clerk  in- 
dorsed on  the  process,  would  not  render  such  summons  void, 
nor  even  furnish  grounds  for  a  motion  to  set  the  same  aside 
at  the  instance  of  the  defendant  last  served.*  This  was 
under  a  statute  authorizing  the  issuance  of  "  a  branch  sum- 
mons," to  be  served  without  the  county  in  which  the  forum 
was  located,  and  within  which  service  was  had  upon  the 
co-defendant  first  served.  The  clerk  was  required  to  in- 
dorse the  branch  summons  so  as  to  show  its  connection  with 
the  original,  and,  in  doing  so,  in  this  instance  included  in 
his  indorsement  the  names  of  the  co-defendants. 


1  WUliair-son  v.  Wardlaw,  40  Ga.,  703. 

2Lyendecker  v.  Martin,  38  Tex.,  287. 

3 Bendy  v.  Boyce,  37  Tex.,  443;  Anderson  v.  Brown,  16  Tex.,  554;  Bat- 
tle V.  Eddy,  31  Tex.,  368;  Port^ood  v.  Wilburn,  33  Tex.,  713.  Mere 
error  in  name,  however,  will  not  generally  affect  the  service.  If  served 
on  the  proper  party,  the  summons  will  ordinarily  be  sufficient,  and  if  a 
name  be  omitted  it  may  be  supplied  after  service.  See  Part  VII,  Serv- 
ice, §  1293  et  seq. 

*  Lewis  V.  Grace,  44  Ala.,  307. 


ORIGINAL   PEOCESS.  583 

§  1154.  Teniie.— And  though  it  is  important  that  the 
venue  should  be  correctly  stated  in  the  process,  to  the  end 
that  the  party  served  may  know  before  what  tribunal  he  is 
called  to  make  his  defense,  still  if  the  proper  county  is  men- 
tioned m  the  margin,  the  insertion  of  a  different  county  in 
the  body  of  the  summons  would  not  render  the  same  void. 
Such  a  defect  may  be  cured  by  amendment.^ 

§  1155.  Immaterial  Variations  and  Omissions. —  So 
immaterial  omissions  and  slight  variations  will  not  be  re- 
garded as  of  sufficient  imjwrtance  to  affect  the  judgment. 
As  where  the  seal  of  the  court,  or  a  copy  thereof,  was 
omitted  from  the  copy  with  which  the  defendant  was 
served,  or  where  the  court,  which  was  legally  st3^1ed  the 
"  court  of  common  pleas,"  was  carelessly  and  erroneously 
designated  in  the  process  as  the  "common  pleas  court," 
these  trifling  departures  from  literal  accuracy  were  held  to 
be  immaterial,  for  the  manifest  reason  that  the}^  could  not 
possibly  mislead  the  defendant.-  So  where  a  notice  of 
mechanic's  lien  stated  the  amount  of  the  account,  described 
the  property  to  be  charged,  and  the  account,  specifying  the 
materials,  was  attached  to  the  notice  and  filed  with  the 
clerk,  it  was  held  a  substantial  compliance,  though  the 
account  was  not  sworn  to  as  required.' 

§  1156.  Requirements  of  Different  States  as  to  Cer- 
tainty of  Summons. —  There  is  not  the  same  degree  of 
particularity  required  by  the  statutes  of  the  different  states, 
in  the  description  of  the  action  to  which  the  defendant  is 
called  upon  to  answer,  or  in  stating  in  the  process  the  cause 
or  causes  of  action.  In  Eliode  Island  the  summons  is 
simply  required  to  state  that  defendant  is  to  answer  "  in  an 

action  of  ,  as  by  declaration  to  be  filed  in  court  will  be 

fully  set  forth."  The  statute  was  held  to  be  suificiently 
complied  with  where  the  blank  in  the  summons  was  fiUed 
by  — "  an  action  on  the  case  for  trover  and  conversion  of 

iRelfe  V.  Valentine,  45  Ala.,  286. 
2  Hughes  V.  Osborn,  42  Ind.,  450. 
3Hassett  v.  Bust,  64  Mo.,  325. 


584  PBACTICE   AND   PLEADING. 

certain  personal  property,"  without  specifying  particularly 
the  chattels  alleged  to  have  been  converted.^ 

§  1157.  The  "Purpose"  to  be  Stated.— So  where  the 
statute  required  all  writs  of  summons  in  civil  actions  to 
state  the  purpose  for  which  the  defendant  was  summoned, 
it  was  held  that  it  was  not  necessary  to  describe  the  nature 
of  the  suit  any  further  than  to  state  when  and  where  it 
was  to  be  answered,  and  the  name  of  the  plaintiff.  The 
construction  placed  upon  the  statutory  requirement  to  "  state 
the  purpose  for  which  the  party  is  summoned,"  was  that  it 
was  intended  to  give  notice  to  the  defendant  that  he  was 
not  summoned  to  a  ppear  as  a  witness  or  for  any  other  pur- 
pose than  to  defend  himself  in  a  suit  of  the  plaintiff  who 
was  named  in  the  summons.  Therefore,  it  was  held  to  be 
a  sufficient  comjiliance  with  this  provision  of  the  statute 
when  the  defendant  was  summoned  to  appear  "  to  answer 
an  action  at  the  suit  of  "  the  plaintiff  —  naming  him.^ 

§  1158.  Infant  Defendants. —  Greater  strictness  is  gen- 
erally required  in  the  observance  of  the  rules  of  practice  in 
cases  involving  the  rights  of  infant  parties.  So,  where  the 
infant  distributees  under  a  will  were  made  defendants  in  a 
suit  for  distribution,  but  were  not  served  with  process,  either 
actually  or  constructively,  they  were  held  to  be  not  bound 
by  the  judgment,  notwithstanding  they  were  plaintiffs  in 
another  suit,  in  which  they  appeared  without  next  friend  or 
guardian,  which  suit  was  consolidated  with  the  one  in  whicli 
they  had  been  made  defendants.* 

§  1159.  When  Returnable. —  Another  feature  in  which 
a  strict  compliance  with  statutory  requu'ements  is  necessary 
to  uphold  the  process,  is  in  making  it  retm^nable  at  the 
proper  term  of  court.  At  common  law,  and  under  the  stat- 
utes of  some  of  the  states,  the  original  process  should  be 
made  returnable  at  the  term  of  com-t  next  succeeding  the 
date  of  service.     Regarding  the  issuance  of  process  as  the 

*  Slocomb  V.  Powers,  10  R.  I.,  355. 

2Eitter  v.  Offutt,  40  Md.,  207. 

3  Bush  V.  Bush,  2  Duvall  (Ky.),  269. 


OEIGINAL  PEOCESS.  585 

commencement  of  the  action,  and  following  the  rule  that 
every  action  is  to  stand  for  trial  at  the  first  term  after  it  is 
commenced,  there  could  not  be  the  intervention  of  a  term 
of  court  between  the  teste  and  return  of  the  writ.  Process 
made  returnable  on  a  day  beyond  the  next  succeeding  term, 
except  where  the  common  law  rule  is  abrogated  by  statute, 
would  not  onl}^  be  held  irregular,  but  absolutely  void,  and 
any  judgment  predicated  upon  such  process  would  be  a 
nullity.^ 

§1160.  Substantial  and  Technical  Defects. —  It  has 
been  asserted  by  some  of  the  authorities  that  not  all  the 
requisites  to  perfect  process  are  indispensable  to  the  support 
of  th.Q  jurisdiction  thereby  sought  to  be  acquired  over  the 
person  of  the  defendant.  The  omission  of  some  things 
regarded  as  necessary  to  the  protection  of  a  judgment 
against  a  direct  proceeding  to  set  the  same  aside,  have  been 
held  not  to  justify  a  collateral  attack  upon  a  judgment  once 
obtained.'-  Such  defects  are  those  which  relate  rather  to  the 
regularity  of  the  process  by  which  jurisdiction  is  obtained, 
than  to  the  question  whether  any  pi^ocess  has  been  issued 
and  served.  It  is  the  difference  between  defective  process 
and  no  process.  Where  the  process  is  merely  defective,  it 
is  held  that  it  may  be  sufficient  to  give  the  court  jurisdic- 
tion of  the  person  of  the  defendant,  when  it  may  try  all 
the  issues  between  the  parties,  and  may  determine  the  ques- 
tion of  the  sufficiency  of  the  process  upon  which  its  juris- 
diction depends,  as  one  of  those  issues.  Should  the  case  go 
to  judgment,  it  will  be  presumed  that  the  court  has  decided 
the  process  to  be  sufficient,  and  its  judgment  can  only  be 
affected  by  a  direct  proceeding  for  the  purpose  of  setting 

'Shirley  v.  Hagar,  3  Blackf.,  225;  Crocker  v.  Dunkin,  6  Blackf,,  535; 
Carey  ?J.  Butler,  11  Ind.,  391;  TVUl  v.  Whitney,  15  id.,  194;  Rigsbee  v. 
Bowler,  17  id.,  167;  Atkinson  v.  Taylor,  2  Wilson,  K.  B.,  117;  Parsons 
V.  Loyd,  3  id.,  341;  Burk  v.  Barnard,  4  Johns.,  809;  Briggs  v.  Sneghan, 
45  Ind.,  14. 

2  Parsley  17.  Hays,  23  Iowa,  11;  Westoby  v.  Day,  22  Eng.  L.  &  Eq., 
261.    But  see  Pollard  v.  Wegener,  13  Wis.,  569. 


586  PRACTICE   AKD   PLEADING. 

the  same  aside,  or  by  seeking  the  reversal  thereof  in  a  court 
of  appellate  jurisdiction.^ 

§  llGl.  Jurisdiction. —  "Jurisdiction,"  it  has  been  said, 
"  consists  not  in  the  declaration  of  right,  but  in  the  right 
to  declare  it,  and  in  declaring  it  rightly ;  and  therefore  pre- 
supposes that  proper  efforts  have  been  made  to  bring  those 
parties  into  court  who  are  to  be  affected  by  its  exercise,"  ^ 
Just  what  are  proper  efforts  to  bring  those  parties  into 
court  who  are  to  be  affected  by  the  exercise  of  its  right  to 
declare,  is  beset  with  some  difficulty,  in  view  of  the  dis- 
tinction between  mere  irregularities  and  fatal  defects  in  the 
process.  Though  process  regarded  as  defective,  and  liable 
to  be  quashed,  has  been  declared  sufficient  to  protect  the 
judgment  from  collateral  attack,^  still  it  cannot  be  main- 
tained that  a  mere  attempt  or  pretense  at  the  issuance  and- 
service  of  process  would  be  sufficient  to  give  the  court  even 
the  temporary  jurisdiction  necessary  to  pass  upon  the  suffi- 
ciency of  the  process.  "Were  the  rule  otherwise,  there  could 
be  no  such  thing  as  a  void  judgment,  fair  on  its  face. 
There  must  be  a  point  of  departure  from  the  legal  require- 
ments in  this  respect  where  the  pretended  process  would 
be  held  no  process  at  all ;  otherwise  the  more  complete  the 
fraud  in  making  a  show  of  service  of  process,  the  better 
would  be  the  prospect  of  success.  Many  of  the  defects 
which  utterly  vitiate  the  process,  as  well  as  those  charac- 
terized in  some  of  the  cases  as  mere  irregularities,  occur 
with  respect  to  the  service  and  return  of  process,  and  will 
be  illustrated  by  cases  cited  in  subsequent  parts  of  this 
chapter  devoted  to  the  return.     From  a  careful  consid^ra- 

iSm.  Lead,  Cas.,  697,  700;  Borden  v.  State,  11  Ark.,  519;  Sheldon  v. 
Wright,  5  N.  Y.,  497;  Wright  v.  Marsh,  2  G.  Greene,  109;  Ewing  v. 
Higby,  67  Ohio,  343 ;  Paine  v.  Mooreland,  15  Ohio,  435 ;  Moitow  v.  Weed, 
4  Iowa,  77;  Shawhan  v.  Laffen,  24  Iowa,  217;  Myers  v.  Overton,  4  E.  D. 
Smith  (N.  Y.),  428. 

2  F,.T.  i-tnrfp.  K'inning,  4  0.  B.,  507;  Kinning  V,  Buchanan,  8  id.,  271;  1 
Sm.  Lead.  Cas.,  839. 

*  Morrow  v.  Weed,  4  Iowa,  77;  Shawhan  v.  Laffen,  supra,  %  1160; 
Fagg  V.  Clements,  16  Cal.,  889. 


OEIGINAL   PEOCESS.  587 

tion  of  these  cases,  as  well  as  those  already  cited,  conflict- 
ing as  some  of  them  will  be  found,  we  may  safely  deduce 
the  rule  that  where  a  departure  from  the  requirements  of 
the  law,  in  regard  to  the  issuance  or  service  of  process,  is  in 
any  substantial  matter  affecting  the  rights  of  the  defendant, 
the  process  will  be  a  nullity,  and  the  judgment  may  be  col- 
laterally attacked.  "What  are  matters  of  substance,  and 
what  matters  of  mere  form,  can  best  be  shown  by  further 
reference  to  the  authorities.^ 

1  See  post,  VIII,  and  cases  cited.  Where  a  party  defendant  upon 
whom  process  has  been  defectively  served,  or  who  has  been  served  with 
process  irregularly  issued,  or  even  where  he  has  been  served  with  no 
process  at  all,  appears  to  the  action,  and  answers,  demurs  generally,  asks 
or  consents  to  a  continuance,  his  appearance  will  amount  to  a  complete 
waiver  of  process.  Briggs  v.  Sneghan,  45  Ind.,  14;  Peters  v.  St.  Louis, 
etc.,  R.  R.  Co.,  59  Mo.,  406;  Reading  v.  Ford,  1  Bibb,  838;  Ryan  v.  Diis- 
coll,  83  m.,  415;  Biles  v.  Stanton,  69  111.,  51;  Holman  v.  Eiterman,  83 
m.,  92;  Randall  v.  Falkner,  41  Cal.,  242.  But  a  special  appeai'ance  for 
the  purpose  of  objecting  to  u-regularities  in,  or  failure  of,  process  can- 
not be  construed  into  a  waiver  of  the  u-regulai'ities  complained  of. 
MuUen  v.  Higgins,  13  Abb.  Pr.,  N.  S.,  297;  Jones  v.  Byrd,  74  lU  ,  115. 


588  PKAOTICE   AND  PLEADING. 


II.    !N"0TICE    OF   TkIAL. 

§  1162.  Required  by  Statute. 

1163.  Example  from  New  York  Code. 

1164.  English  Rule. 

1165.  Should  Not  be  Vague  or  Misleading. 

1166.  Should  Specify  the  Particular  Suit. 

1167.  May  be  Noticed  for  Trial  by  Either  Party. 

1168.  Sufficiently  Explicit  as  to  Term. 

1169.  Party  Notified  May  Rely  on  Term  Designated. 

1170.  Served  Before  Issue  Joined. 

1171.  Does  Not  Depend  Upon  Discretion  of  Court. 
1173.  Service  Upon  Party  or  Attorney. 

1173.  Effect  of  Continuance. 

1174.  Effect  of  Amendment. 

1175.  Notice  Waived. 

1176.  Where  Judgment  Attacked  for  Want  of  Notice. 

1177.  Must  be  for  Substantial  Defects. 

1178.  Statement  of  Wrong  Day. 

1179.  Failure  to  Place  on  Calendar. 

1180.  Wisconsin  Code. 

1181.  Time  Under  English  Rule. 

§  1162.  Reciiiired  l)y  Statute. —  The  notice  treated  of  in 
this  place  is,  in  general,  the  creature  of  statute  law,  and  is 
sometimes  prescribed  and  regulated  in  its  details  by  the 
rules  of  court,  for  the  reason  that  the  statute  does  not  pre- 
scribe with  sufficient  definiteness  its  form  and  contents,  nor 
its  manner  and  mode  of  service.  In  many  of  those  states 
where  the  code  has  been  adopted,  and  the  issues  between 
parties  are  made  by  pleadings  filed  in  court,  within  certain 
prescribed  periods,  notice  of  trial  is  not  required  to  be  served 
upon  the  party  or  his  attorney.  Where  the  answer  is  filed 
on  or  before  a  certain  day  of  the  return  term,  and  the 
plaintiff  is  required  either  to  reply  or  demur  on  or  before  a 
certain  day  after  the  filing  of  the  answer,  the  court  will 
take  notice  when  an  issue,  either  of  law  or  fact,  is  reached, 
"When  the  pleadings,  with  the  exception  of  the  first,  are 
filed  in  term  time,  the  parties  are  supposed  to  be  fully  ad- 
vised of  the  progress  of  the  written  altercations  they  are 


NOTICE   OF   TKIAL.  089 

conducting  through  their  attorneys,  and  the  trial  "  calendar  " 
or  "  docket  "  will  notify  them  when  the  cause  is  set  down 
for  hearing. 

§1163.  Example  from  New  York  Code.— The  system 
of  practice  which  includes  this  notice  is  therefore  pecuhar 
to  certain  states  of  the  Union,'  and  to  Great  Britain.  As 
an  example  of  the  provisions  of  the  code  of  procedure  in 
this  respect,  we  shaU  incorporate  a  section  which  embraces 
enough  to  show  not  only  the  object  of  such  a  notice,  but 
Avill  give  a  general  idea  of  its  principal  requisites :  "  At  any 
time  after  the  joinder  of  issue,  and  at  least  fourteen  daj's 
before  the  commencement  of  the  term,  either  party  may 
serve  a  notice  of  trial.  The  party  serving  the  notice  must 
file  with  the  clerk  a  note  of  issue,  stating  the  title  of  the 
action,  the  names  of  the  attorneys,  the  time  when  the  last 
pleading  was  served,  the  nature  of  the  issue,  whether  of  fact 
or  law ;  and,  if  an  issue  of  fact,  whether  it  is  triable  by  a 
jury,  or  by  the  court  without  a  jury.  The  note  of  issue 
must  be  filed  at  least  eight  days  before  the  commencement 
of  the  term;  unless  a  different  time  is  prescribed  in  the 
general  rules  of  practice.  The  clerk  must  thereupon  enter 
the  cause  upon  the  calendar,  according  to  the  date  of  the 
issue.  In  the  city  and  county  of  New  York,  when  a  party 
has  served  a  notice  of  trial,  and  filed  a  note  of  issue,  for 
a  term  at  which  the  cause  is  not  tried,  it  is  not  necessary 
for  him  to  serve  a  new  note  of  issue  for  a  succeeding  term ; 
and  the  action  must  remain  on  the  calendar  until  it  is  dis- 
posed of."  - 

§  1164.  English  Rule. —  The  English  nile  is  that,  previ- 
ously to  the  sittings  or  assizes  at  which  the  cause  is  to  be 
tried,  the  plaintiff  should  give  due  notice  of  trial.^  The 
manner  and  mode  of  giving  such  notice,  as  well  as  the 
time  between  the  service  of  the  notice  and  the  sittings,  are 
regulated,  to  a  considerable  extent,  by  the  rules  of  the  court 

1  New  York,  Wisconsin,  New  Jersey,  Minnesota,  and  some  others. 
2Tliroop's  Code  (N.  Y.),  §  977. 
STidd'sPrac,  753. 


590  PRACTICE   AND    PLEADING. 

where  the  cause  is  triable.  These  rules  differ,  in  some  minor 
particulars,  in  the  courts  of  queen's  bench,  exchequer  and 
common  pleas,  respectively,  but  generally  receive  about  the 
same  Uberal  construction  in  either  of  these  tribunals.  The 
tendency  of  the  decisions  seems  to  be  to  render  the  notice 
of  trial  subservient  to  the  purpose  for  which  it  was  designed, 
though  in  doing  so  the  court  may  tolerate  a  departure  from 
technical  accuracy.' 

§  1165.  Should  Not  be  Tague  or  Misleading. —  In  the 
]S"ew  York  code,  the  contents  of  the  "  note  of  issue,"  to  be 
filed  with  the  clerk,  are  prescribed  with  sufficient  definite- 
ness,  while  the  notice  to  be  served  upon  the  opposite  party 
or  his  attorney  is,  by  the  section  quoted,  simply  required  to 
be  served  at  least  fourteen  days  before  the  commencement 
of  the  term,  and  as  to  what  it  shall  contain,  is  left  to  the 
discretion  of  the  party  giving  it.  But  enough  is  intended, 
by  its  designation  as  a  notice  of  trial,  to  indicate  that  it 
should  be  sufficiently  explicit  to  convey  to  the  party  notified 
definite  information  of  the  fact  that  the  cause  is  to  be 
entered  upon  the  calendar  for  trial.  The  absence  of  any 
statutory  requirements  as  to  the  statements  to  be  contained 
in  the  notice,  as  well  as  the  circumstances  under  which  it  is 
given,  would  not  seem  to  impose  the  duty  of  observing 
technical  accuracy  in  its  statements ;  but  still,  it  should  not 
be  so  vague  or  general  as  to  mislead  the  opposite  party  or 
his  attorney. 

§1166.  Should  Specify  the  Particular  Suit. —  So, 
where  two  actions,  only  one  of  which  is  noticed  for  trial, 
are  depending  between  the  same  parties,  and  the  same  at- 
torneys are  employed  to  prosecute  and  defend,  the  notice 
should  specify  the  particular  action  intended  by  the  giver 
of  the  notice,  as  the  one  to  be  tried.  Otherwise  the  notice 
may  be  considered  too  indefinite,  and  consequently  insuffi- 
cient to  meet  the  requirements  of  the  statute.^  So,  also,  it 
has  been  held,  where  a  plaintiff  who  notices  a  cause  for 

1  Tidd's  Prac,  754  et  seq.,  with  cases  cited  in  notes. 

2  Lisher  v.  Parmelee,  1  Wend.,  22. 


NOTICE   OF   TRIAL.  591 

trial  intends  to  move  for  an  assessment  of  damages  on  de- 
fault, that  such  intention  should  be  expressed  in  the  notice.^ 
§  1167.  May  l)e  Noticed  for  Trial  by  Either  Party.— 

As  the  case  may  be  noticed  for  trial  by  either  party,  and 
may  be  at  issue  on  a  set-off,  counter-claim,  or  cross-demand, 
by  which  the  defendant  asks  affirmative  relief,  should  the 
defendant,  in  such  a  case,  notice  the  cause  for  trial,  it  has 
been  thought  that  the  notice  should  express  the  intention  to 
demand  the  relief  prayed  in  his  answer.- 

§1168.  Sufficiently  Explicit  as  to  Term.— Xot with- 
standing the  notice  should  be  sufficiently  explicit  to  direct 
the  party's  attention  to  the  term  at  which  the  cause  would 
be  for  trial,  still  it  has  been  held,  where  the  notice  was  with- 
out date,  and,  after  mentioning  the  court  in  which  the  cause 
was  pending,  informed  the  party  notified  that  such  cause 
would  "  be  brought  on  for  hearing  at  the  next  term  of  said 
court,"  that  such  notice  was  not  inoperative  on  account  of 
the  absence  of  the  date,  from  which  it  might  have  been 
gathered  what  term  was  meant  by  "  next  term."  ^ 

§  1 169.  Party  Notified  May  Rely  on  Term  Desij;nated. 
But  w^hen  the  term  has  been  designated,  the  party  notified 
has  a  right  to  rely  upon  the  statements  contained  in  the 
notice.  And  if  he  should  not  find  the  cause  upon  the  cal- 
endar for  the  term  for  which  he  has  received  notice  of  trial, 
he  is  not  bound  to  examine  for  each  successive  term  there- 
after, in  order  to  learn  \vhether  the  cause  is  in  a  condition 
to  be  called  up  for  trial.^ 

§  1170.  Served  Before  Issue  Joined. —  The  notice  should 
probably  be  served,  in  every  instance,  as  is  provided  in  the 
iS^ew  York  code  of  procedure,''  after  issue  joined,  and  not 
hefore.  But  this  has  reference  only  to  the  issue  to  be  tried. 
So,  where  there  were  two  counts  in  a  declaration,  to  the 

iVoorh.  Code  (1864),  459. 

3  Brushaban  v.  Stigemann,  23  Mich.,  199. 

4  Culver  V.  Felt,  4  Rob.  (N.  Y.),  681. 
*  (Supra. 


592  PEACTicE  A^ny  pleading. 

second  of  which  there  were  several  j??^.?,  and  to  the  fourth 
plea  a  special  rephcation  upon  which  issue  was  not  joined 
when  the  notice  of  trial  was  served  by  plaintiff,  the  declara- 
tion was  amended  by  striking  out  such  second  count.  It 
was  held  that  the  notice  of  trial  was  effectual  as  to  the  first 
count,  and  defendant  declining  to  appear  further,  there  was 
a  verdict  and  judgment  for  plaintiff.^  It  has  been  held, 
however,  in  that  state,  that  the  plaintiff,  on  serving  a  repli- 
cation, may  at  the  same  time  deliver  a  notice  of  trial ;  but 
the  proceeding  is  subject  to  defeat  or  modification  by  the 
subsequent  delivery  of  a  demurrer  by  defendant.  And 
should  there  be  issues  of  fact  joined  on  some  of  the  pleas, 
and  plaintiff  does  not  join  in  demurrer,  but  takes  a  verdict, 
he  holds  the  same  dependent  upon  the  event  of  the  demur- 
rer.- It  has  also  been  held  that  notice  of  hearing  cannot 
properly  be  served  until  after  the  return  day  in  the  writ.^ 

§  1171.  Does  Not  Depend  Upon  Discretion  of  Court. — 
Where  defendant  has  apj)eared  he  is  entitled  to  notice  of 
trial.  His  right  to  such  notice  does  not  depend  in  any  de- 
gree upon  the  discretion  of  the  court.  "Whatever  may  be 
the  circumstances  of  the  case,  the  court  cannot  dispense 
with  the  service  of  such  notice  and  render  a  judgment 
against  defendant  which  may  not  be  set  aside.'' 

§  1172.  Service  Upon  Party  or  Attorney. —  But  the 
service  may  be  either  upon  the  party  or  his  attorney,  except 
where  the  statute  or  the  rules  of  court  expressly  provide 
that  a  preference  shaU  be  given  to  service  upon  one  or  the 
other.^  The  manner  and  mode  of  service  is  much  the  same 
as  that  of  serving  other  notices  in  the  course  of  practice. 
In  one  case,  where  the  service  was  by  leaving  a  copy  of 
the  notice  at  the  office  of  the  plaintiff's  attorney  of  record, 

laiiller  V.  stocking,  23  Wend.,  623. 
2Beresford  v.  Geddes,  Law  Rep.,  2  C.  P.,  285. 
sjVIilesu.  Goffinet,  16  Mich.,  280. 

*  Tracy  v.  Steam  Faucet  Manuf.  Co.,  1  E.  D.  Smith  (N.  Y.),  349;  Tidd's 
Prac,  753. 
6  Ibid. 


NOTICE   OF   TKIAL.  593 

who  was  absent  from  the  state,  and  also  by  personal  service 
upon  the  plaintiff,  the  sufficiency  of  the  service  was  ques- 
tioned, but  was  sustained  by  the  court,  upon  the  ground 
that,  as  the  absent  attorney  still  kept  an  office  Avithin  the 
state,  and  if  he  had  withdrawn  from  the  case  and  another 
had  not  been  retained  the  party  might  be  personally  served.' 

§  1173.  Effect  of  Continuance. —  When  from  any  cause 
the  case  is  not  tried  at  the  term  for  which  the  notice  is 
given,  not  only  is  it  unnecessary,  as  provided  by  the  jS'ew 
York  code,-  to  file  a  new  note  of  issue,  but  under  similar 
code  provisions  it  has  been  held  that  the  party  who  first 
noticed  the  case  is  not  required  to  give  a  new  notice  of 
trial.' 

§  1174.  Effect  of  Amendment. —  So  it  has  been  held, 
where  a  cause  was  regularly  noticed  for  trial  and  placed 
upon  the  calendar,  that  an  amendment  of  the  pleadings 
would  not  necessitate  a  new  notice.* 

§  1175.  Notice  Waived. —  An  irregularity  in  a  notice  of 
trial,  or  even  a  failure  to  give  any  notice  at  all,  may  only 
be  taken  advantage  of  before  trial,  for  the  obvious  reason 
that  by  proceeding  to  trial  without  objection  the  party 
waives  notice.'^ 

§  1176.  Where  Judgment  Attacked  for  Want  of  No- 
tice.—  Where  there  is  an  entire  absence  of  notice  of  trial, 
or  even  where  such  notice  is  insufficient  or  irregular  in  any 
material  respect,  the  judgment  obtained  by  default  in  such 
cause  may  be  set  aside,  by  a  direct  proceeding  for  that  pur- 
pose.^ 

§  1177.  Must  be  for  Substantial  Defects. —  But  in  pass- 
ing upon  the  sufficiency  of  a  notice  of  trial,  the  court  will 
not  set  aside  the  judgment  for  mere  verbal  inaccuracies 

iHarwood  v.  Smethurst,  30  N.  J.  L.,  230. 
2  Supra. 

sciaudet  v.  Prince,  2  Q.  B.,  406. 
^Stevens  v.  Cuny,  10  Minn.,  316. 

8  Commonwealth  v.  Intoxicating  Liquors,  13  Allen,  561. 
6  Jenks  V.  Pavne,  15  Johns.,  399. 
38 


594  niACTICE    AND    PLEADING. 

which  may  or  may  not  be  prejudicial  to  the  rights  of  the 
party  complaining  of  want  of  notice ;  as  an  error  in  a  name, 
or  the  day  of  the  week  on  which  the  term  commences. 
The  matter  to  be  determined  is  whether  the  party  or  his 
attorney  was  misled  by  the  defect,  and  in  deciding  this 
question  the  court  will  not  be  restricted  to  the  face  of  the 
notice,  but  will  inquire  into  aU  the  other  circumstances.^ 

§  1178.  Statement  of  Wrong  Day.— As  where  the  day 
on  which  the  term  commenced  was  given  as  "the  third 
Tuesday  "  instead  of  "  the  third  Monday,"  and  on  the  "Wednes- 
day following  the  third  Tuesday  the  party  who  had  noticed 
the  cause  for  trial  took  an  inquest ;  a  motion  to  set  aside 
the  inquest  was  denied  because  the  attorney  upon  whom 
the  notice  was  served  had  retained  the  same,  and  it  did  not 
appear  that  he  was  in  any  wise  misled  by  its  inaccurate 
statement  of  the  day  of  the  commencement  of  the  term.^ 

§  1179.  Failure  to  Place  on  Calendar. —  But  where  the 
defendant  had  noticed  the  cause  for  trial  and  had  failed  to 
place  it  upon  the  calendar  pursuant  to  such  notice,  and  the 
plaintiff's  attorney  attended  the  court  on  the  second  day, 
but  finding  no  such  cause  on  the  calendar,  and  being  as- 
sured by  the  partner  of  defendant's  attorney  that  there  was 
no  intention  to  move  in  the  case,  gave  it  no  further  attention, 
an  order  of  dismissal  taken  by  defendant  was  held  irregular, 
and  was  set  aside  because  plaintiff's  attorney  was  clearly 
misled.^ 

§  1180.  Wisconsin  Code. —  The  Wisconsin  code  differs 
somewhat  from  that  of  Kew  York  with  respect  to  notices 
of  trial.  The  latter  has  already  been  copied.*  The  former 
pro\'ides  that  "  at  any  time  after  issue  joined  in  any  civil 

1  Wolfe  V.  Horton,  3  Caines,  86;  Bander  v.  Covill,  4  Cow.,  GO;  Down 
V.  Rice,  11  Wend.^  178. 

'•^N.  Y.  Cent.  Ins.  Co.  v.  Kelsey,  13  How.  Pr.,  535;  Bander  v.  Covill,  4 
Cow.,  60;  Anonymous,  1  Johns.,  143;  Jackson  ex  detn.  Davis  v.  Bron- 
6on,  4  Cow.,  51. 

3  Browning  v.  Paige,  7  How.  Pr.,  487. 

*  Ante,  page  589. 


NOTICE    OF   TRIAL.  595 

action,  either  part}"  may  bring  the  same  on  for  trial  at  any 
term  of  the  court  at  which  the  same  is  triable,  by  giving 
notice  of  trial  at  least  ten  days  before  such  term." '  In 
construing  this  section  it  was  held  that  the  language  clearly 
indicated  that  the  party  who  would  force  the  other  to  trial 
must  himself  give  the  notice.  The  intention  of  the  statute 
was  not  merely  to  secure  the  placing  of  the  cause  upon  the 
calendar,  but  was  intended  to  modify  or  repeal  a  former 
statute  providing  that  either  party,  in  the  absence  of  the 
other,  might  call  any  case  upon  the  calendar,  up  for  trial. 
And  where  the  case  was  noticed  for  trial  by  the  defendant, 
plaintiff  could  not,  under  the  provisions  of  the  later  statute, 
call  the  case  up  and  take  judgment  in  the  absence  of  the 
defendant.- 

§  1 1 81.  Time  Under  English  Rule. —  In  England,  where 
the  rule  for  "  town  causes  "  was  eight  days'  notice  to  those 
who  were  resident  in  town,  or  within  forty  computed  miles 
thereof,  and  fourteen  days  to  those  Avho  resided  more  than 
forty  miles  distant,  it  was  held  that  a  party  who,  since  the 
institution  of  the  suit,  had  removed  to  the  distance  of  forty 
miles,  was  entitled  to  the  longer  notice.^  But  to  entitle  a 
party  who  had  removed  from  town  after  the  commence- 
ment of  the  suit,  to  fourteen  days'  notice  of  trial,  it  was 
also  held  that  he  should  give  the  opposite  party  notice  of 
such  removal*  And  where  defendant  had  constantly  re- 
sided in  town  from  the  time  of  the  arrest,  though  his  home 
was  more  than  forty  miles  from  town,  it  was  held  that  in 
a  town  cause  he  was  only  entitled  to  eight  days'  notice  of 
trial.* 

iLaws  Wis.,  1859,  chap.  71,  §  1 ;  Stat.  Wis.  1871,  p.  1494,  §  9.  In  cer- 
tain actions  specified,  the  defendant  may  notice  the  action  for  hearing 
on  trial,  both  upon  questions  of  law  and  fact,  regardless  of  whether 
issue  has  been  joined  upon  the  facts  or  not.     Id.,  p.  1495,  §  10. 

-  Buckley  v.  Lewis,  20  Wis.,  490. 

a  Spencer  v.  Hall,  1  East,  688. 

*  Rochfort  V.  Robertson,  12  East,  427. 

5  Lloyd  V.  Hooper,  7  East,  624. 


596  PKACTICE   AND   PLEADING. 

in.  Notice  of  Motions  and   Othek   Inteklocutort  Pko- 

CEEDINGS. 

§  1183.  Motions. 

1183.  Notice  by  Entry  in  Book. 

1184.  When  Required, 

1185.  Presence  of  Counsel  Will  Not  Waive. 

1186.  Parties  Charged  with  Notice  of  Motion. 

1187.  Motion  in  the  Natm-e  of  Summary  Proceeding. 

1188.  Motion  to  Set  Aside  Sheriff's  Sale. 

1189.  Filed  in  Term  Time. 

1190.  Examples  Under  Different  Statutes. 

1191.  Motion  to  Dismiss  Appeal. 
1193.  Sufficiency  of  Notice. 

1193.  Substantial  Accuracy. 

1194.  Against  Constable. 

1195.  Designation  of  Court. 

1196.  Date  of  Filmg. 

1197.  Circumstances  Affecting  Sufficiency. 

1198.  Notice  Generally  in  Writing. 

1199.  Service  of  Notice. 

1300.  Upon  the  Party  Affected. 

1301.  Time  of  Notice. 

1303.  Motion  for  New  Trial. 
1803.  Waiver  by  Appearance. 

1304.  Notice  of  Reference. 

1305.  Notice  of  Reinstatement. 

1306.  Rule  to  Show  Cause. 

1307.  Examination  of  Accounts. 

§  1182.  Motions. —  The  motions  that  are  made  in  the 
progress  of  a  trial,  or  used  to  institute  proceedings  in  court, 
are  too  numerous  and  diverse  in  character  to  render  it  either 
practicable  or  useful,  for  the  purposes  of  this  work,  to 
attempt  an  enumeration  of  them,  in  order  to  state  when  and 
under  what  circumstances  a  notice  of  such  motion  should  be 
given  to  the  opposite  party,  or  might  be  dispensed  with. 
Neither  is  it  necessary  to  set  out  in  detail  the  provisions  of 
the  various  statutes  upon  this  subject.  It  will  be  sufficient 
to  give  such  general  rules  as  may  be  extracted  from  the 
judicial  construction  given  to  statutes  bearing  upon  the  sub- 


NOTICE   OF   PKOCEEDINGS.  597 

ject,  and  to  endeavor  to  properly  set  forth  the  methods 
favored  by  the  courts  for  imparting  notice  of  such  motions. 

§  1183.  Notice  by  Entry  in  Book. —  The  practice  of 
serving  the  opposite  party  with  notice  of  motions  is  not  at 
all  uniform.  In  some  of  the  states  the  only  notice  received 
of  the  filing  of  an  interlocutory  motion,  by  the  party  to  be 
affected  thereby,  is  by  its  filing  in  open  court,  or  by  an  entry 
in  a  book,  variously  designated  as  "  Motion  Docket,"  "  Law 
Docket,"  or  "  Law  Calendar,"  kept  for  that  purpose,  in  court 
during  term  time,  and  in  the  office  of  the  clerk  of  such 
court  during  vacation.  This  book  is  at  all  times  open  to 
insj)ection,  and  when  a  motion  is  entered  there,  the  attorney 
for  the  opposite  party  is  presumed  to  be  fully  notified  of 
the  pendency  of  such  motion.  Even  the  keeping  of  such 
book  is  not  always  prescribed  by  statute,  but  is  in  some  in- 
stances left  to  the  discretion  of  the  court,  to  be  laid  down 
as  one  of  its  rules  or  entirely  omitted,  as  may  be  deemed 
most  expedient.  We  shall  not  attempt  to  enter  minutely 
into  a  consideration  of  such  notices  of  motions  as  are  given 
in  this  manner,  but  shall  confine  our  attention  to  such  as  are 
given  by  the  mover  or  his  attorney  to  the  party  to  be  af- 
fected, or  the  attorney  of  such  party,  by  means  of  regular 
service  of  such  notice  in  writing. 

§  1184:.  When  Required. —  And  first,  as  to  when  notice 
of  a  motion  should  be  given.  In  general,  when  the  motion 
extends  to  and  affects  the  interest  of  the  party  against 
whom  the  motion  is  made  beyond  his  process,  such  party  or 
his  attorney  must  be  served  with  notice ;  as,  where  the  mo- 
tion is  by  defendant,  to  have  an  execution  against  him 
entered  satisfied.  Though  the  motion  merely  affected  the 
process,  the  party  being  supposed  to  be  present  in  court  with 
his  process,  it  was  held  such  motion  might  have  been  made 
without  notice.^ 

§  1185.  Presence  of  Counsel  Will  Not  Waive.— How- 
ever, it  is  not  to  be  inferred  that  the  mere  presence  of  the 

1  Haley  v.  Williams,  8  Sm.  &  M.,  487. 


598  PKACTICE    AND   PLEADING. 

party  or  liis  attorney  in  court  Avhen  the  motion  is  made  will 
always  be  sufficient  to  dispense  with  a  notice  of  such  mo- 
tion. On  the  contrary,  it  has  been  held  that  the  certificate 
of  a  judge  that  counsel  of  the  adverse  party  was  in  court 
when  a  motion  was  made,  but  without  stating  that  such 
counsel  had  notice  or  knowledge  of  the  motion,  was  not 
sufficient  to  show  notice  to  him,^ 

§  1186.  Parties  Charged  with  Notice  of  Motion. —  Else- 
where it  has  been  held  that  when  a  party  is  once  in  court, 
he  must,  at  his  peril,  take  notice  of  all  orders  and  all  plead- 
ings ^Z<?fi?  hy  order  of  the  court?  But  the  distinction  between 
motions  or  pleadings  filed  by  order  of  the  court,  and  those 
filed  by  the  party  at  his  own  instance,  is  quite  obvious. 

§  1187.  Motion  in  the  Nature  of  Summary  Proceed- 
ing.—  Where  the  motion  is  in  the  nature  of  a  summary 
proceeding  against  some  one  who  has  not  already  been 
brought  in  by  process,  notice  of  such  motion  should  always 
be  given.  As  where  it  is  for  the  removal  of  a  jailer  or  other 
ministerial  officer  for  alleged  malfeasance  or  misfeasance, 
such  motion  should  not  be  sustained  where  the  officer  has 
not  been  duly  notified  of  its  pendency  against  him.^  "Where 
the  motion  was  for  judgment  against  a  sheriif  for  making 
a  false  return,  it  was  held  that  to  allow  judgment  to  go  ac- 
cording to  such  motion,  without  giving  the  sheriff  such 
notice  as  would  enable  him  to  appear  and  make  his  defense, 
would  be  equivalent  to  the  prosecution  of  a  civil  suit  against 
a  defendant  upon  whom  original  process  had  never  been 
served.  He  would  not  have  his  day  in  court,  and  hence 
such  judgment  would  be  absolutely  void.^ 

§  1188.  Motion  to  Set  Aside  Sheriff's  Sale. —  So,  also, 
should  notice  be  given  of  a  motion  to  set  aside  a  sheriff's 


iShotwell  V.  RoweU,  30  Ga.,  557. 

2  Williams  v.  MUler,  1  Wash,  Terr.,  105.  See  Meredith  v.  Santa  Clara^ 
etc.,  Min.  Ass'n,  60  Cal.,  617. 
3Gorham  v.  Luckett,  6  B.  Monr.,  146. 
« Jenkins  v.  State,  33  JMiss.,  383. 


NOTICE   OF   PROCEEDINGS.  599 

sale,^  or  to  set  aside  an  order  of  court  made  at  a  prior  temi 
of  court ;  -  in  either  of  which  cases  the  notice  should  be  given 
to  all  parties  interested.  But  a  motion  made  to  set  aside  a 
verdict,  rendered  at  the  same  term  at  which  the  motion  was 
made,  was  held  not  to  require  any  formal  notice,  because 
being  made  at  the  same  term  at  which  the  trial  was  had,  it 
thereby  became  a  part  of  the  trial.^  Nor  is  notice  necessary 
of  a  motion  to  set  aside  a  default  entered  by  a  justice  of  the 
peace,  even  in  states  where  notice  of  motion  is  generally 
required.* 

§  1189.  Filed  in  Term  Time. —  It  has  also  been  held 
that  motions  filed  in  term  time  do  not  require  the  service  of 
notice  on  the  opposite  party,  when  such  motion  has  refer- 
ence to  a  proceeding  before  the  court  at  the  term  at  which 
the  motion  was  made.^ 

§  1190.  Examples  Under  Different  Statntes. —  In  gen- 
eral, the  codes  require  notice  to  be  given  of  an  intended 
motion  for  a  new  trial.^  Also  of  a  motion  for  alimony  in- 
cident to  a  decree  of  divorce,  which  is  in  the  nature  of  a 
summary  proceeding,  and  the  notice  ansAvers  the  same  pur- 
pose as  the  original  process  in  the  litigation  of  any  claim  or 
demand,  and  consequent!}'  should  be  served  the  fuU  time 
prescribed  by  statute  for  the  service  of  such  notices ;  other- 
wise they  should  not  be  heard.''  But  under  a  statute  of  thd 
state  of  Georgia,  it  was  held  that  where  the  object  of  the 
motion  Avas  to  establish  copies  of  office  papers,  notice  was 
not  indispensable.^ 

§  1191.  Motion  to  Dismiss  Appeal.— Where  a  motion 
was  made  to  dismiss  an  appeal,  it  was  held  that  as  the  par- 

i  Osborn  v.  Cloud,  21  Iowa,  238. 
2Keeney  v.  Lyon,  21  Iowa,  277. 
3 Hansen  v.  Fish,  27  Wis.,  535. 
*  Stivers  v.  Thompson,  15  Iowa,  1. 
5  Wagner  u.  Tice,  36  Iowa,  599. 

SKilUp  V.  Empu-e  Mill  Co.,  2  Nev.,  84;  Coveny  v.  Hale,  49  Cal.,  552; 
Markward  v.  Doriat,  21  Ohio  St.,  637. 
7  WUde  V.  Wilde,  2  Nev.,  306. 
8 Saunders  v.  Smith,  3  Ga.,  121. 


600  PEACTICE   A^T»    PLEADLN'G. 

ties  were  supposed  to  be  in  court  after  continuance  for  col- 
lateral motions,  they  were  not  entitled  to  any  other  notice 
than  the  entry  of  such  motion  on  the  law  docket,  according 
to  the  practice  of  the  court. ^ 

§  1192.  Sufficiency  of  Notice. —  Xext,  as  to  what  is  suf- 
ficient notice  of  a  motion.  Where  formal  notice  is  required 
at  all,  beyond  the  entry  of  the  motion  itself  in  the  docket 
or  calendar,  the  almost  universal  requirement  is  that  it  shall 
be  reduced  to  writing,  and  regularly  served  upon  the  party 
or  his  attorney.  And  such  notice  should  contain  a  state- 
ment sufficiently  specific  and  certain  to  advise  the  party  so 
served  of  the  natm^e  of  the  motion  to  be  made  and  of  the 
particular  matter  in  controversy  to  be  aflected  by  such 
motion.  And  where  the  motion  is  to  be  directed  to  a  mat- 
ter affecting  the  interests  of  the  party  notified,  and  he 
would  have  the  right  to  explain  or  deny  by  affidavit  the 
matter  constituting  the  groimds  alleged  for  the  motion, 
such  ground  should  be  stated  with  reasonable  certainty  in 
the  notice.- 

§  1193.  Substantial  Accuracy. —  As  in  other  matters  of 
practice,  so  in  this,  is  the  notice  prescribed  one  which  de- 
pends for  its  sufficiency  more  upon  a  substantial  subserv- 
ance  of  the  objects  and  purposes  for  which  it  was  designed 
than  upon  any  technical  precision  of  its  statements.  So, 
even  where  the  motion  noticed  was  in  the  nature  of  a  sum- 
mary proceeding  under  the  statute,  for  the  pm-pose  of  charg- 
ing the  party  notified  with  a  debt,  it  was  held  sufficiently 
definite  if  it  described  with  reasonable  certainty  the  debt 
with  reference  to  which  the  motion  was  to  be  made.* 

§  119-1.  Against  Constable. —  So,  where  the  motion  was 
against  a  constable,  charging  him  with  neglect  of  duty,  and 
was  in  the  natur-e  of  a  pleading,  substantial  certainty  in 
the  notice  was  sufficient.     The  judgment  with  reference  to 

1  Papin  V.  Buckingham,  33  Mo. ,  454. 

2Brower  r.  Brooks,  1  Barb.,  423;  Freeborn  v.  Glazier,  10  CaL,  337. 
sColgin  r.  State  Bank,  11  Ala..  222.    See  Barbaries  v.  Gregory,  64  Cal., 
2S0. 


NOTICE    OF   rUOCEEDINGS.  601 

wbicli  the  neglect  was  alleged,  being  described  as  against 
"P.  and  others,"  while  it  appeared  in  evidence  that  it  was 
against  "P.  &  L.,"  the  error  was  held  immaterial.^  But 
where  the  motion  noticed  was  against  a  constable  for  neg- 
lect of  duty  in  not  paying  over  money  collected  on  claims 
placed  in  his  hands,  the  notice  was  held  fatally  defective 
for  not  averring  that  he  had  collected  any  money  on  such 
claims.'- 

§  1195.  Designation  of  Court. — Where  the  notice  desig- 
nates the  court  in  which  the  motion  is  to  be  made,  the  place 
of  holding  such  court,  being  a  matter  of  which  every  one 
is  supposed  to  take  notice,  need  not  be  stated  in  the  notice 
in  order  to  render  the  same  sufficient.* 

§  1196.  Date  of  Filing.— But  where  a  motion  is  to  be 
made  for  judgment,  the  notice  should  give  the  correct  date 
when  the  motion  will  be  made,  for  the  same  reason  that  the 
original  process  is  required  to  be  specific  in  this  particular. 
It  was  accordingly  held,  where  notice  was  given  that  a 
motion  for  judgment  against  a  sheriif  would  be  made  on 
the  fouHli  of  the  month,  and  such  motion  was  filed  on  the 
third  and  ordered  to  he  over,  and  was  taken  up  subsequent 
to  the  fourth  and  judgment  rendered  thereon,  that  such 
judgment  was  void.**  But  where  the  notice  was  given  of  a 
motion  to  be  made  on  the  twenty-fifth  of  the  month,  and 
the  court  adjourned  over  that  day,  it  was  held  that  the 
motion  might  be  heard  on  a  day  subsequent  to  the  twenty- 
fifth  without  a  new  notice.^ 

§  1197.  Circumstances  Affecting  Sufficiency. —  The  suf- 
ficiency of  the  notice  often  depends  upon  collateral  cir- 
cumstances. As  where  the  motion  was  for  judgment  on  a 
bond,  given  to  suspend  a  sale  of  property  levied  on  to 


1  Hix  V.  Cornelison,  7  Coldw.  (Tenn.),  299. 

2  Barrett  v.  Smith,  4  W.  Va.,  709. 

3  Brown  u.  State,  8  Heisk.  (Teiin.),  871. 
*  Foster  v.  Wade,  4  Met.  (Ky.),  252. 

5 Piatt  V.  Robinson,  10  Wis.,  128. 


602  PRACTICE   AND   PLEADING. 

satisfy  an  execution,  tlie  suflBciency  of  the  notice  was  de- 
termined by  considering  it  in  connection  witli  tlie  bond.^ 

§  1198.  Notice  Generally  in  Writing. —  The  rule  seems 
almost  universal  that  the  notice  should  be  written,  except 
where  there  is  an  express  waiver,  or  such  conduct  by  the 
party  as  will  estop  him  from  denying  the  receipt  of  notice. 
It  Avas  accordingly  held  that  an  informal  verbal  notice  of  a 
motion  for  a  new  trial,  given  out  of  court,  while  in  conver- 
sation with  opposing  counsel,  would  not  be  sufficient.^ 

§  1199.  Service  of  Notice. —  Another  important  matter 
for  consideration,  in  connection  with  this  branch  of  the  sub- 
ject, is  service  of  such  notices ;  which  necessarily  includes 
ujpon  whom  and  hy  lohom  the  service  of  notice  should  be 
made,  as  well  as  the  time  and  manner  of  making  such  serv- 
ice. The  rules  applicable  to  the  service  of  other  notices 
will  be  found  generally  applicable  to  service  of  notice  of 
a  motion,  and  these  rules  we  shall  endeavor  to  illustrate 
more  fully  elsewhere.^  It  may  be  proper  to  state  here,  how- 
ever, that  the  notice  of  a  motion  should  always  be  served 
upon  the  party  to  be  aifected  thereby,  or  upon  his  attorney 
of  record,  if  he  have  one.*  When  the  motion  is  one  aris- 
ing in  the  course  of  the  trial  of  a  cause,  a  decided  prefer- 
ence seems  to  be  given  to  service  hy  the  attorney  of  the 
party  giving  the  notice,  and  upon  the  attorney  of  the  oppo- 
site party,  not  only  as  a  matter  of  general  convenience, 
but  as  a  positive  rule  of  practice,  laid  down  by  some  of  the 
courts.^ 

§  1200.  Upon  the  Party  Affected. —  In  the  case  of 
Walker  -y.  Scott,*'  it  was  decided  that  the  judgment,  which 

1  Smith  V.  Wells'  Adm'rs,  4  Bush  (Ky.),  93. 

2Kiinp  V.  Empu-e  Mill  Co.,  3  Nev.,  34;  Pearson  v.  Lovejoy,  53  Barb. 
(N.  Y.),  407;  Butler  v.  Mitchell,  17  Wis.,  52;  Bear  Eiver  and  Auburn, 
etc.,  Co.  V.  Boles,  24  Cal.,  854. 

3  See  post,  VII,  Service. 

4  Walker  v.  Scott,  29  Ga.,  392. 

6  Harding  v.  Stafford,  Say;  Rep.,  133;  Halsey  v.  Carter,  6  Rob.  (N.  Y,), 
535. 
^  Supra,  §  1199. 


NOTICE   OF   PKOCEEDINGS.  GU3 

sliould  have  been  against  the  principal  and  liis  surety,  being 
by  mistake  entered  against  the  principal  alone,  might,  on 
motion,  be  amended  by  adding  the  name  of  the  surety,  and 
it  would  not  be  necessary  to  serve  notice  of  such  motion  on 
the  principal.  This  holding  was  obviously  for  the  reason 
that  the  principal  was  not  the  party  interested  in  the  motion. 

§  1201.  Time  of  Notice. —  The  length  of  time  for  which 
the  notice  must  be  given  of  an  intended  motion,  before  the 
same  will  be  considered  by  the  court,  varies  according  to 
the  character  of  the  motion,  as  well  as  the  difference  in  the 
practice  of  the  different  courts ;  but  where  no  fixed  rule  is 
prescribed  by  statute  or  rule  of  court,  it  wiU  be  sufficient  if 
the  notice  is  served  a  reasonable  time  before  the  court  takes 
action  in  the  matter.^  And  even  where  the  time  is  lixed  by 
rule,  it  is  frequently  subject  to  the  will  of  the  court,  in  the 
exercise  of  a  sound  discretion,  to  shorten  the  time  in  partic- 
ular instances,  before  the  service  of  the  notice.^ 

§  1202.  Motion  for  New  Trial.— It  has  been  held  that 
moving  for  a  new  trial  will  continue  the  jurisdiction  of  the 
court  over  the  cause  beyond  the  term,  when  due  notice  of 
the  intention  to  so  move  has  been  given,  and  such  notice  is 
followed  up  by  a  statement  or  affidavit  of  what  the  motion 
will  contain,  made  in  due  time ;  but  if  the  notice  and  subse- 
quent statement  are  not  made  within  the  statutory  time, 
the  com't  loses  jm'isdiction  of  the  cause  at  the  end  of  the 
term,  and  thereafter  cannot  set  aside  a  judgment,  however 
erroneous  it  may  be.' 

iBruenv.  Bruen,  43  111.,  408;  Coveny  v.  Hale,  49  Cal.,  552;  Damb- 
mann  v.  White,  48  Cal.,  439;  Crowther  v.  Rowlandson,  27  Cal.,  376; 
8  Price,  503 ;  Douglas  v.  Eay,  4  Durnf .  &  East,  552. 

2 Rogers  v.  McElhone,  12  Abb.  Pr.,  392.  See  Gray  v.  Nunan,  63  Cal., 
220;  Patrick  v.  Morse,  64  Cal.,  462;  Emeric  v.  Alvarado,  64  Cal.,  529. 

3  State  V.  First  National  Bank,  4  Nev.,  358;  Caney  i?.  Silverthorn,  9 
Cal.,  67;  Calderwood  v.  Brooks,  28  Cal.,  151.  See  People  t?.  Center,  61 
Cal.,  191;  Wittenbrock  v.  BeUmer,  62  Cal.,  558.  K  the  notice  does  not 
conform  to  the  statute  in  respect  to  whether  the  motion  should  be  made 
upon  affidavits,  it  will  not  suffice.  Hill  v.  Beatty,  61  Cal.,  292;  Farrell 
V.  Jones,  63  Cal.,  194. 


C04  PEACTICE    AND   PLEADING. 

§  1203.  Waiyer  by  Appearance. —  Irregularities  in  the 
notice,  however,  which  might  furnish  sufficient  grounds  for 
overruling  the  motion,  or  even  for  setting  aside  the  order  or 
judgment  based  upon  such  motion,  where  the  same  had  been 
sustained,  may  all  be  waived  b}'^  an  appearance  for  the  pur- 
pose of  contesting  the  motion  when  the  same  comes  up  for 
hearing.^ 

§  1 204.  Notice  of  Reference. —  One  of  the  proceedings 
where  notice  becomes  necessary  is  when  a  cause  is  by  the 
court  referred  to  a  master,  or  to  a  special  referee  appointed 
for  that  purpose.  If  the  order  of  reference  is  made  in  the 
absence  of  either  party  or  his  attorney,  such  absent  party 
or  attorney  would  be  entitled  to  notice  thereof,  in  some 
form.  And  when  the  reference  is  made,  the  parties  or  their 
attorneys  should  be  duly  notified  of  the  hearing.  This 
notice  must  be  given  in  a  reasonable  time  so  as  to  enable 
the  one  notified  to  be  in  attendance  at  the  time  without 
using  extraordinary  diligence.  So  that,  in  one  instance, 
three  days'  notice,  where  that  time  was  barely  sufficient, 
barring  all  delays,  to  allow  the  attorney  of  the  opposite 
party  to  attend  the  hearing,  was  held  insufficient.^  But  it 
has  been  held  that  where  a  cause  is  unnecessarily  referred, 
all  the  facts  necessary  to  a  decree  being  in  possession  of  the 
court,  there  is  no  necessity  for  notice  to  the  opposite  party 
of  such  reference.* 

§1205.  Notice  of  Reinstatement. —  Where  a  cause  has 
been  finally  disposed  of  by  confirmation  of  the  master's  re- 
port, if  either  party  desires  to  reinstate  the  case,  for  the 
purpose  of  instituting  further  proceedings  in  relation  thereto, 
it  must  be  upon  due  notice  to  the  opposite  party.  And 
where  such  a  case  was  reinstated  at  a  term  next  succeeding 
the  one  at  which  the  report  was  confirmed,  without  notice 
to  the  opposite  party,  it  was  held  that  all  subsequent  pro- 

1  Brown  v.  State,  8  Heisk.  (Teim.),  871. 

2  Strang  v.  AHen,  44  HI.,  428. 

3  Michigan -Insurance  Co.  v.  Whittimore,  13  Mich.,  427;  Kellogg  v. 
Putnam,  11  Mich.,  344. 


KOTICE   OF   rKOCEEDINGS.  G05 

ceedings  and  orders  affecting  the  interests  of  the  party  not 
notified  would  not  only  be  irregular,  but  absolutely  void.^ 

§  1206.  Rule  to  Show  Cause. —  Where  a  rule  to  show 
cause  why  a  petition  should  not  be  dismissed  had  been 
continued  indefinitely,  and  it  was  finally  fixed  for  a  time 
certain,  it  was  held  that  the  party  against  whom  the  rule  was 
granted  would  be  entitled  to  reasonable  notice  of  the  fixing 
thereof.^  Upon  the  same  principle,  if  the  continuance  was 
at  the  instance  of  the  party  subject  to  the  rule,  and  the  fix- 
ing of  the  rule  was  on  his  application  or  with  his  knowledge, 
the  opposite  party  should  have  notice.  But  where  a  fore- 
closure suit  was  revived,  by  scire  facias,  against  the  heirs  of 
a  deceased  mortgagor,  under  a  statute  requiring  the  filing 
of  the  response  and  the  service  of  a  copy  on  the  attorneys 
of  the  plaintiff,  it  Avas  held  that  the  notice  was  not  void  by 
reason  of  its  f aihng  to  fix  a  time  for  showing  cause ;  because 
the  practice  in  such  cases  was  a  matter  of  statutory  regula- 
tion, and  the  fixing  of  the  time  by  the  notice  was  not  re- 
quired by  statute.^ 

§  1207.  Examination  of  Accounts.— An  accounting 
party  may  be  cross-examined  on  his  accounts,  after  the  same 
have  been  submitted.  When  this  is  done,  he  is  generally 
entitled  to  notice  of  such  cross-examination,  and  the  notice 
should  specify  the  points  upon  which  the  examination  is  to 
proceed.* 

1  Mulvey  v.  Carpenter,  78  lU.,  580. 

2Hennen  v.  New  Orleans  &  C.  R.  R.  Co.,  20  La.  An.,  544. 

SDurbin  v.  Waldo,  15  Wis.,  3$2. 

^McArthurr.  Dudgeon,  15  Eq.  Cas.,  103. 


606  PKACTicE  Aj^d  pleading. 


TV.  iN'oTicE  OF  Appeal, 

§  1208.  iTot  Always  Eequired. 

1209.  Written,  and  Served  Upon  Attorney. 

1210.  In  Criminal  Cases. 

1211.  Justices  of  the  Peace. 

1212.  When  Notice  Serves  as  an  Assignment  of  Errors. 

1213.  Grounds  of  Appeal. 

1214.  Assent  to  Judgment. 

1215.  Must  be  on  Same  Day. 

1216.  Must  be  Given  in  Time. 

1217.  Personal  Service  Not  Required. 

1218.  Notice  to  be  Given  to  Co-parties. 

1219.  Does  Not  Depend  Upon  Conflict  of  Interest. 

1220.  Waived  by  Appearance. 

§  1208.  Not  Ahvays  Required. —  The  rules  governing  the 
notice  of  appeal  possess  very  few  features  of  a  peculiar  char- 
acter, to  distinguish  them  from  those  applicable  to  notices  of 
other  court  proceedings.  Under  the  code  practice  of  some  of 
the  states  of  the  Union,  there  is  practically  no  such  thing  as 
a  notice  of  appeals,  except  where  they  are  taken  from  judg- 
ments of  justices  of  the  peace  and  other  inferior  courts. 
The  proceedings  to  perfect  the  appeal  take  place  in  open 
court,  and  the  appellee  is  required  to  take  notice  of  such 
proceedings,  to  the  same  extent  as  he  would  of  the  rendition 
of  the  judgment.  But  when  the  appeal  is  perfected  during 
vacation,  there  may  be  certain  acts,  as  signing  of  the  bill  of 
exceptions,  and  the  like,  of  which  the  appellee  should  have 
notice. 

§1209.  Written,  and  Served  Upon  Attorney.— This, 
like  most  of  the  notices  required  in  practice,  should  be  writ- 
ten ;  •  and,  in  civil  actions  where  the  opposite  party  appears 

iMasterson  v.  Herndon,  10  Wall.,  416;  LaiTabee  v.  Morrison,  15  Minn., 
196.  In  this  case  it  was  held  that  an  omission  of  the  signature  to  the 
notice  might  be  taken  advantage  of  after  admission  of  service.  Tiffin  v. 
Millington,  3  Mo.,  418,  where  it  is  decided  that  such  notice  cannot  be 
properly  served  by  reading  the  same  to  the  opposite  party,  but  the  writ- 
ing must  be  delivered  to  him. 


NOTICE    OF   APPEAL  607 

by  attorney,  may  in  every  instance  be  served  upon  the 
attorney,  and  may  be  signed  by  the  attorney  of  appellant.^ 
In  some  of  the  states,  in  cases  where  an  attorney  has  been 
employed,  the  service  of  the  notice  is  required  to  be  made 
upon  him.^ 

§1210.  In  Criminal  Cases. —  There  is  perhaps  no  very 
good  reason  for  a  contrary  rule  in  criminal  cases,  and  where 
the  appeal  is  taken  by  the  defendant,  the  notice  could  be 
served  upon  the  state's  attorney.  Where  not  so  served,  it 
was  held  that  the  appeal  should  be  dismissed.^  But  it  has 
been  decided,  when  the  appeal  was  taken  by  the  state,  that 
notice  of  appeal  served  upon  defendant's  counsel  was  not  in 
compliance  with  the  statute,  and  because  the  notice  was 
not  served  upon  the  defendant  in  person,  the  appeal  was 
dismissed.*  Though,  when  the  defendant  cannot  be  found, 
the  notice  may  be  effectuall}^  served  b}^  posting  it  in  the 
office  of  the  clerk  of  the  court.'^  However,  it  has  been  held 
that  in  case  of  an  appeal  from  an  order  changing  the  place 
of  trial,  the  notice  sliould  be  served  upon  the  clerk  of  the 
court  in  which  such  order  is  made.'' 

§  1211.  Justices  of  the  Peace.— Under  a  statute  of  a 
state,  where  such  notice  was  exacted  in  ever}^  case  of  an 
appeal  from  a  judgment  of  a  justice  of  the  peace,^  and 
appeals  were  held  to  be  properly  dismissed  for  the  slightest 
variation  from  statutory  requirements  in  the  matter  of  de- 
scribing the  case,  the  authority  of  the  person  or  officer  mak- 
ing the  service,^  of  the  time  of  service,  or  any  other  essential 

1  Larrabee  v.  Morrison,  supra. 

2  Abrahams  v.  Stokes,  39  Cal.,  150;  Tripp  tJ,  De  Bow,  5  How.  (N.  Y.) 
Pr.,  114.  One  notice  of  appeal  from  parts  of  two  judgments,  and  from 
a  special  order  after  judgment,  will  not  suffice.  People  v.  Center,  61 
Cal.,  191 ;  Wittenbrock  v.  Ballmer,  6.3  Cal.,  558. 

3 People  V.  Fennel,  etc.  (Utah),  6  West  Coast  Rep.,  837. 

*State  V.  Brandon,  6  Kan.,  243;  State  v.  Baird,  9  Kan.,  60. 

5  Tbid. 

« Haas  V.  Weinhagen,  30  Wis.,  326. 

'  Masterson  v.  ElUngton,  10  Mo.,  712;  McCabe  v.  Lecompt,  15  Mo.,  78. 

s  Tiflan  V.  Millington,  3  Mo.,  418. 


608  PliACTICE   AXD    PLEADI^'G. 

particular,'  it  was  held  that  such  notice  might  be  executed 
by  an  agent  in  the  name  of  his  principal,  and  if  it  were 
doubtful  whether  he  was  properly  authorized,  parol  evidence 
was  competent  to  establish  the  fact.-  And  where  the  notice 
was  signed  by  the  person  who  appeared  for  the  appellant,  it 
was  held  immaterial  that  he  did  not  describe  himself  as  at- 
torney for  the  appellant,^  and  that  a  want  of  notice  might 
be  waived  by  the  appellee's  appearance  and  moving  to  dis- 
miss on  account  of  an  inforraahty  in  the  bond.'* 

§  1212.  When  Notice  Serves  as  an  Assignment  of 
Errors. —  In  the  state  of  New  York,  the  notice  of  appeal 
from  an  inferior  com't  seems  to  serve  the  purpose  in  the  ap- 
pellate court  of  an  assignment  of  errors  or  bill  of  excep- 
tions. On  appeal,  or  error,  the  appellant  or  plaintiff  in 
error  is  confined  to  the  ground  of  appeal  assigned  in  the 
notice,  or  the  error  therein  complained  of,  with  the  same 
strictness  as  parties  to  suits  in  courts  of  general  jurisdiction 
are  restricted  to  the  allegations  in  their  written  pleadings.^ 
And  such  notice  is  required  to  point  out  clearly  the  grounds 
of  appeal.  It  was  accordingly  held,  in  an  appeal  from  the 
judgment  of  the  court  of  common  pleas,  that  it  was  not 
sufficient  for  the  notice  to  state  that  the  judgment  was 
against  the  law  and  evidence.^ 

§  1213.  Grromuls  of  Appeal.— So,  in  case  of  an  appeal 
from  the  judgment  of  a  justice  of  the  peace,  u2)on  the  law, 
where  the  grounds  of  appeal  assigned  were  that  the  evi- 
dence "  was  incompetent,  did  not  support  the  judgment, 
that  on  it  the  plaintiff  was  not  entitled  to  recover,  and  that 
the  judgment  was  contrary  to  law,"  the  notice  was  held  in- 

1  Hempstead  v.  Darby,  2  Mo.,  25 ;  Cocliran  v.  Bird,  id.,  141 ;  Hayton  v. 
Hope,  3  Mo.,  53. 

2  Runkle  v.  Hagan,  3  Mo.,  234. 

3  Eutledge  v.  Superior  Court  (Cal.),  6  West  Coast  Rep.,  565. 

4  Rector  v.  St.  Louis  Cir.  Ct.,  1  Mo.,  607. 

5  Belong  V.  Brainard,  1  Thomp.  «&  C.  (N.  Y.),  1 ;  Avery  v.  Woodbeck, 
5  Lans.  (N.  Y.),  498;  S.  C,  62  Barb.,  557.  See  Code  of  Procedure,  N. 
Y.,  §  353. 

6  Begley  v.  Chose,  4  Daly  (N.  Y.),  157. 


NOTICE    OF   APrEAL.  609 

suiBcient  to  sustain  the  appeal,  because  i.:  did  not  point  out 
specifically  the  errors  in  the  judgment  appealed  from.^  But 
where  one  good  ground  of  appeal  is  assigned  in  the  notice, 
it  seems  the  appeal  will  not  be  dismissed,  whether  it  be  an 
appeal  upon  the  law  or  the  facts;  as  the  provisions  of  the 
code  -  appear  to  apply  to  both  alike.' 

§  1214.  Assent  to  Judgment. —  Another  requisite  of  the 
notice  under  the  New  York  practice  is  that  it  shall  contain 
an  assent  that,  "  if  the  judgment  be  aflirmed,  judgment 
absolute  may  be  rendered  against  the  appellant ; "  but  where 
this  is  omitted  by  mistake,  it  may  be  supplied  by  amend- 
ment, even  after  the  expiration  of  the  time  for  appeal,  nwic 
jyro  tunc} 

§  1215.  On  Same  Bay.— Under  the  code  of  civil  pro- 
cedure of  the  state  of  California,  the  filing  of  the  notice  of 
appeal,  the  undertaking  and  the  service  of  notice  must  be 
effected  on  the  same  day.  The  notice  may  be  served  per- 
sonally, or  in  any  of  the  other  modes  provided  by  statute 
for  the  service  of  similar  papers,  and  when  the  appeal  fails 
for  the  want  of  timely  notice,  a  new  appeal  may  be  taken.'^ 

§  1216.  Must  be  Given  in  Time. —  So,  also,  where  the 
practice  under  the  code  of  another  state  "^  was  to  give  ten 
days'  notice  of  appeals  from  the  judgments  of  justices' 
courts,  it  was  held  that  a  failure  to  give  the  notice  precisely 
within  the  time  would  not  be  such  a  serious  default  as  to 
preclude  the  party  from  the  right  to  have  his  case  reheard." 

§  1217.  Personal  Service  Not  Required. —  The  neces- 
sity for  a  relaxation  of  the  strict  rule  requiring  personal 

1  Belong  V.  Brainard,  1  Thomp.  &  C.  (N.  Y.),  1. 

2  See  Voor.  Code  (1864),  §  371 ;  also  §§  353,  354,  note. 
3Younghaus  v.  Fingar,  63  Barb.,  299;  S.  C,  47  N.  Y.,  99;  Bixby  v. 

Warden,  46  Hott.  Pr.,  239. 

*Mott  V.  Lansing,  5  Lans.,  516. 

sColumbetu.  Pacheco,  46  Cal.,  650. 

6  Code  Prac.  North  Carolina,  §  535. 

■^  Marsh  v.  Cohen,  68  N.  C,  283.     It  was  held  in  California  that  an 
appeal  would  be  dismissed  if  notice  were  given  prior  to  final  judgment. 
People  V.  Center,  6  West  Coast  Rep.,  150. 
39 


GIO  PKACTICE    AND    PLEADING. 

service  of  notice  is  perhaps  more  apparent  in  the  notice  of 
appeal  than  in  any  other.  AVere  it  not  for  tlie  fact  that 
some  other  mode  than  personal  delivery  of  a  written  notice 
to  the  appellee  is  provided  by  the  statutes  of  the  different 
states,  the  courts  would,  in  cases  where  personal  service  was 
impossible,  be  inclined  to  look  favorably  upon  the  substitu- 
tion of  such  other  modes  as  were  prescribed  in  analogous 
cases.  Otherwise  a  party  who  had  succeeded  in  obtaining 
an  unjust  judgment,  might,  by  avoiding  personal  service  of 
notice,  entirely  defeat  the  right  of  appeal.  But  Avhen  the 
service  is  by  any  statutory  method,  the  return  should  show 
the  state  of  facts  by  which  it  was  authorized.' 

§  1218.  Notice  to  be  Given  to  Co-parties. —  It  is  not 
always  sufficient  to  give  notice  of  appeal  to  the  opposite 
party.  The  interests  of  a  co-plaintiff  or  co-defendant  may 
be  adverse  to  those  of  the  party  who  complains  of  error  in 
the  judgment;  in  w^iich  event  it  is  incumbent  upon  the 
party  appealing  to  give  notice  of  such  appeal  to  such  co- 
plaintiff  or  co-defendant.^ 

§  12  lU.  Does  Not  Depend  Upon  Conflict  of  Interest. — 
This  rule  of  practice  is  of  more  general  application  than 
that  requiring  notice  of  appeal  to  the  opposite  party,  and 
does  not  depend  upon  the  existence  of  a  conflict  of  interests 
between  co-parties.  In  the  supreme  court  of  the  United 
States,  it  was  formerly  required,  when  one  or  more  of  the 
vanquished  parties  desired  to  appeal  or  sue  out  a  writ  of 
error,  that  a  summons  should  be  served  upon  those  who 
were  willing  to  abide  the  judgment  and  have  a  severance  j 
but  latterly  there  has  been  adopted,  as  a  substitute  for  such 
summons  and  severance,  the  service  of  a  written  notice  upon 
such  parties.  And  the  mere  allegation  of  the  appellant,  in 
his  petition,  that  his  co-parties  failed  to  appear  or  refused 
to  join,  will  not  be  sufficient.  The  record  should  show  due 
service  of  notice  upon  the  parties,  or  that  they  appeared 

J  Cunningham  v.  Warnekey,  61  Cal.,  507;  Wittenbrock  f .  Bellmer,  62 
Cal.,  558;  Steele  u.  Merced  County,  62  Cal.,  6. 
2HiscoGk  V.  Phelps,  2  Lans.  (N.  Y.),  106;  Reed  v.  Allison,  61  Cal.,  461. 


NOTICE    OF   APPEAL.  611 

and  refused  to  join  in  the  appeal,  and  that  the  court  granted 
an  appeal  to  the  party  who  prayed  for  it,  as  to  his  own 
interest.' 

§  1220.  Waived  by  Appearance. —  Where,  however,  one 
of  several  co-plaintiffs  or  co-defendants  appeals,  and  the 
others  appear  and  refuse  to  join,  this  renders  notice  to  them 
unnecessary,  under  the  rule  that  a  voluntary  appearance  of 
a  party  entitled  to  notice  amounts  to  a  waiver  of  such  no- 
tice.^ According  to  the  same  rule,  the  voluntary  appear- 
ance of  the  appellee  is  regarded  as  a  waiver  of  the  notice 
of  appeal,  where  such  notice  is  required.^  The  indorsement 
of  an  acknowledgment  of  "  due  service  "  will  obviate  inquiry 
into  the  manner  of  service.* 

JMasterson  v.  Henderson,  10  Wall.,  416.  See,  also,  as  to  statutory- 
provision  on  the  same  subject,  in  the  state  of  Indiana,  2  G.  &  H.,  270, 
§551.  If  any  question  can  be  said  to  be  "settled"  by  numerous  de- 
cisions, the  construction  of  this  statute,  requiring  notice  fi'om  an  appel- 
lant to  his  co-pai'ties,  may  be  considered  at  rest  in  that  state.  The  appeal 
has  been  uniformly  dismissed  where  notice  was  neglected.  Knar  v, 
Conway,  37  Ind.,  257;  Pittsburgh  &  C.  R.  R.  Co.  v.  Elliott,  38Ind.,  153; 
id.,  103;  id.,  226;  id.,  266;  id.,  589;  id.,  427;  39  Ind.,  244;  id.,  393;  id., 
474;  40  Ind.,  142;  id.,  195;  id.,  341;  41  Ind.,  143;  id.,  277;  42  Ind.,  386; 
id.,  399;  id.,  477;  id.,  497;  43  Ind.,  1;  id.,  472;  id.,  380;  id.,  381;  id.,  29. 

2  Rich  V.  Starbuck,  45  Ind.,  310. 

3  But  though  consent  may  waive  error  or  irregularity  in  giving  the 
notice,  where  it  is  necessary  to  the  jurisdiction  of  the  appellate  court, 
such  jurisdiction  cannot  be  conferred  by  waiver  of  notice.  Oliver  v. 
Harvey,  5  Oreg.,  360. 

4  People  V.  Grigsby,  62  Cal.,  482. 


g22  PKACTICE    A.KD   PLEADING. 


Y.  Notice  of  Taking  Depositions. 

§  1231.  When  Required. 

1222.  Generally  in  Writing. 

1223.  Wliat  to  Contain. 

1224.  Deemed  Sufficient. 

1225.  Clerical  Errors. 

1226.  Name  of  Officer. 

1227.  Witnesses  Need  Not  All  be  Named. 

1228.  Conditional  Notice  Insufficient. 

1229.  Must  be  Signed. 

1230.  Time  of  Taking. 

1231.  IMistake  in  Date  of  Taking. 

1232.  General  Requisites. 

1233.  Time  of  Service. 

1234.  Time  Decided  by  Com-t. 

1235.  Computation  of  Time  and  Distance. 

1236.  Absence  of  Statute  or  Rule. 

1237.  Time  Not  Always  Governed  by  Distance. 

1238.  Time  Not  Fixed  by  Special  Circumstances. 

1239.  Except  When  Unusually  Short. 

1240.  Statutory  Time  May  be  Shortened. 

1241.  Objections  to  Time  —  When  Taken. 

1242.  Party  Must  Show  Himself  Entitled  to  Time. 

1243.  Service  of  Notice. 

1244.  Insufficient  Service. 

1245.  Upon  Several  Co-parties. 

1246.  Strict  Personal  Service  Not  Required. 

1247.  Proof  of  Service. 

1248.  Upon  Attorneys  in  Partnership. 

1249.  When  Depositions  to  be  Used  in  Two  Cases. 
1350.  Postponement  by  Consent. 

1251.  Effect  of  Acknowledgment  of  Service. 

1252.  Alteration  of  Notice. 

1253.  Objections  Waived. 

1254.  Waiver  by  Presence. 

1255.  May  be  Present  Without  Waiver, 

1356.    Effect  of  Adjournment  Without  Consent. 

§  1221.  When  Required.— When,  for  any  purpose,  one 
of  the  parties  to  a  suit  desires  to  take  the  testimony  of  a 
witness  in  writing,  to  be  used  upon  the  trial,  in  lieu  of  his 
oral  testimony,  whether  it  be  to  perpetuate  such  testimony 


NOTICE    OF   TAKING    DEPOSITIONS.  613 

against  the  possibilities  of  the  death  or  absence  of  such  wit- 
ness, or  to  obtain  evidence  where  the  witness  is  beyond  the 
reach  of  a  siibjjmna  testificandum  issuing  out  of  the  court 
where  the  suit  is  pending,  it  is  necessary  to  serve  the  oppo- 
site party  or  his  attorney  with  due  and  timely  notice  of  the 
taking  of  such  deposition ;  otherwise  it  may  be  suppressed 
on  motion,  or,  in  any  event,  will  not  be  permitted  to  be 
offered  in  evidence,  unless  such  notice  has  been  waived  by 
the  party  against  whom  the  deposition  is  offered.'  And  it 
will  be  no  answer  to  a  motion  to  suppress  a  deposition  for 
the  want  of  notice,  that  the  witness  has  since  deceased,  and 
unless  the  deposition  is  admitted  his  testimony  will  be 
utterly  lost.^ 

§  1222.  Generally  in  Writing. —  As  a  general  rule,  the 
notice  is  required,  either  by  statute  or  rule  of  court,  to  be 
in  wi'iting ;  but  in  the  absence  of  such  statute  or  rule,  verbal 
notice  will  be  sufficient,  especially  where  notice  is  not  de- 
nied.^ And  where  a  party  verbally  agreed  with  the  opposite 
party  to  the  suit  upon  the  time  and  place  of  taking  deposi- 
tions, and  a  deposition  was,  in  pursuance  of  such  agreement, 
taken  by  one  of  the  parties  in  the  absence  of  the  other,  the 
party  failing  to  attend  was  not  permitted  to  repudiate  the 
agreement,  and  object  to  the  deposition  upon  the  ground 
that  he  had  not  been  notified  of  the  taking  thereof.*  Where, 
however,  the  statute  required  the  notice  to  be  in  writing,  it 
was  held,  though  the  court  might  order  a  deposition  to  be 
taken  during  the  trial,  and  upon  such  notice  as  to  time  as 
seemed  reasonable,  that,  nevertheless,  the  written  notice 
prescribed  by  statute  could  not  be  dispensed  ^vith.* 

§  1223.  What  to  Contain. —  As  to  what  the  notice  shall 
contain,  no  precise  rule  can  be  laid  down  which  wiU  be 

1  Ellis  V.  Jaszynsky,  5  Cal.,  444;  Gamett  v.  Yoe,  17  Ala.,  74;  Foster  v. 
Smith,  2  Cold.  (Tenn.),  474;  Briggs  v.  Green,  33  Vt.,  565. 
2PeiTy  V.  Siter,  37  Mo.,  273. 
3  Milton  V.  Rowland,  11  Ala.,  732. 
<Ormsby  v.  Town  of  Granby,  48  Vt.,  44. 
SDunning  v.  Foster,  42  N.  H.,  165;  Cater  v.  M'Daniel,  21  N.  H.,  231. 


614  PRACTICE   AND   PLEADING. 

found  universall}^  applicable.  The  matter  being  regulated 
by  statute,  in  some  of  the  states  the  notice  is  required  to 
contain  a  much  fuller  statement  than  in  others.  But  there 
is  probably  no  exception  to  the  rule  requiring  the  notice  to 
indicate  with  reasonable  certainty  the  time  and  place  of 
taking  the  depositions,  and  also  the  particular  actions  in 
which  the  same  are  intended  to  be  used.^ 

§  1224.  Deemed  Sufficient. —  Where,  however,  the  no- 
tice was  to  take  the  deposition  on  a  given  day,  at  an  hour 
mentioned,  "  at  the  house  of  W  P.  (the  witness),  to  be  read 
in  evidence  in  a  case  now  pending  in  the  superior  court  of 
law  for  the  said  county,  wherein  I  am  plaintiff  and  you  are 
defendant,"  though  the  county  in  Avhich  said  witness  resided, 
and  the  suit  was  pending,  was  not  mentioned,  there  being 
no  evidence  that  there  was  any  other  "  W.  P.,"  or  any  other 
suit  between  the  parties  than  the  one  on  trial,  the  notice 
was  held  sufficient.^ 

§  1225.  Clerical  Errors. —  So  where  there  is  a  clerical 
error  in  writing  the  name  of  the  place  where  the  depositions 
are  to  be  taken,  if  in  the  opinion  of  the  court  such  mistake 
is  not  misleading,  the  deposition  should  be  received.^  Espe- 
cially if  there  be  other  descriptive  terms  in  the  notice, 
less  hkely  to  be  mistaken.^  So  also  where  the  case  was 
wrongly  entitled,  but  not  so  as  to  mislead  the  opposite 
party's  attorney,  who  knew  the  case  intended  by  the  notice, 
and  knew  the  witnesses  to  be  examined,  and  signified  his 
intention  to  be  present  at  the  examination,  the  notice  was 
held  sufficient.^ 

§  1226.  Name  of  Officer. —  In  general,  it  is  unnecessary 
to  mention  the  name  of  the  officer  before  whom  the  deposi- 
tion will  be  taken,  except  where  the  statute  interposes  this 
requirement ;  ^  but  where  the  name  of  such  officer  is  required, 

1  Kingsbury  v.  Smith,  13  N.  H.,  109. 

2  Owens  V.  Kinsey,  6  Jones,  Law  (N.  C),  38. 

3  Gibson  v.  Gibson,  20  Pa.  St.,  9. 

*  Pursell  V.  Long,  7  Jones,  Law  (N.  C),  103.  •  ' 

SMathew  v.  Dare,  20  Md.,  248. 

s  Patterson  v.  Hubbard,  30  lU.,  301. 


NOTICE   OF   TAKING   DEPOSITIONS.  615 

or  is  given  merely  through  an  abundance  of  caution,  a  mis- 
take in  writing  the  name,  as  where  it  was  rendered  "  Stormer  " 
for  "  Stermer,"  it  not  appearing  that  there  were  two  justices 
of  those  names  in  tlie  county,  the  notice  was  held  sufficient.^ 
So  where  the  Christian  name  of  the  commissioner  was 
omitted  in  a  notice  of  a  rule  for  an  extraterritorial  com- 
mission, the  depositions  taken  under  such  commission  were 
held  admissible,  as  there  did  not  appear  to  be  another  com- 
missioner of  the  same  name  in  the  place  where  the  deposi- 
tions were  taken.-  And  where  the  name  of  the  commissioner 
was  erroneously  substituted  for  that  of  the  witness,  the 
mistake  was  held  immaterial,  inasmuch  as  in  all  the  other 
papers  the  names  were  correctly  inserted,  so  that  the  oppo- 
site party  could  not  be  misled.^ 

§1227.  Witnesses  Need  Not  All  be  Named. —  Where 
the  notice  stated  that  the  depositions  of  several  witnesses  — ■ 
naming  them  —  and  others^  were  to  be  taken,  and  the  wit- 
nesses named  did  not  depose,  but  the  evidence  of  others  was 
taken  at  the  time  and  place,  this  was  held  no  good  ground 
for  excluding  such  depositions.^  In  fact,  the  names  of  the 
witnesses  are  not  generally  required  to  be  inserted  in  the 
notice.^  But  in  a  case  arising  under  a  statute  requiring  the 
names  of  the  witnesses  to  be  given,  a  notice  declaring  an 
intention  to  take  the  depositions  of  such  person  or  persons 
as  were  on  a  certain  day,  mentioned  in  the  notice,  acting- 
tellers  or  cashiers  of  a  certain  designated  bank,  this  notice 
was  held  not  a  sufficient  identification  of  the  witnesses  to 
be  examined.^ 

§  1228.  Conditional  Notice  Insufficient. —  Notice  that  a 
deposition  in  chancery  proceedings  will  be  taken  condi- 
tionally has  been  held  insufficient  to  authorize  the  receipt 

1  County  of  Green  v.  Bledsoe,  12  Bl.,  267. 

2Kellum  V.  Smith,  39  Pa.  St.,  241. 

3  Eastman  v.  Bennett,  6  Wis.,  232. 

♦  McDugald  V.  Smith,  11  Ired.  (N.  C),  576. 

sHeaton  v.  Findlay,  12  Pa.  St.,  304;  Mumma  v.  McKee,  10  Iowa,  107. 

6  Pilmer  v.  Branch  of  State  Bank,  16  Iowa,  321. 


616  PKACTICE   AKD   PLEADING. 

of  such  deposition  in  evidence.  The  intention  to  take  the 
deposition  should  be  expressed  in  absolute  terms.^ 

§  1229.  Must  be  Signed. —  Another  feature  of  the  notice, 
which  Avould  only  be  neglected  or  omitted  through  careless- 
ness or  negligence,  is  the  signature  of  the  party  or  attorney 
by  whom  it  is  giv^en.  Of  course,  all  that  is  requisite,  where 
the  notice  comes  directly  from  the  party,  is  that  it  shall  be 
signed  with  his  usual  signature.-  When,  however,  the  notice 
is  given  by  the  attorney,  that  fact  should  appear  from  the 
signature;  but  it  is  of  slight  importance  what  additions  are 
made  to  the  name  of  the  ]3erson  sending  the  notice,  or  what 
is  omitted  therefrom  which  might  with  propriety  be  added, 
so  long  as  the  notice  is  signed,  and  the  party  notified  under- 
stands, from  the  signature,  from  whom  or  in  whose  interest 
the  notice  is  given.* 

§  1230.  Time  of  Taking. —  The  notice  should  state  the 
time  of  taking  the  depositions,  with  reasonable  certainty, 
both  as  to  the  day  and  hour.  It  is  the  general  practice, 
however,  to  fix  the  time  between  certain  hours  of  the  day, 
as  8  o'clock  in  the  forenoon  and  5  o'' clock  in  the  afternoon^ 
etc.  This  latitude  as  to  hours  seems  necessary,  in  order 
that  neither  party  may  be  taken  entirely  by  sm-prlse,  and 
forestalled  of  his  right  to  appear  and  examine  any  witnesses 
produced  by  the  other;  but  as  to  the  day  of  taking  the  dep- 
osition, less  latitude  is  allowable  or  necessary.  In  general, 
the  taking  should  be  commenced  on  a  day  mentioned  in  the 
notice,  though  it  may  be  continued  through  several  days 
until  finished."*  And  where  the  notice  was  that  the  deposi- 
tions would  be  taken  on  the  15th,  and  if  not  finished  on  the 
15th,  then  on  the  16th,  and  so  on  to  the  18th  of  the  month, 
it  was  held  that  one  taken  pursuant  to  such  notice  on  the 
18th  was  properly  admitted  against  the  objections  of  the 


1  Crittenden  v.  Woodruff,  11  Ark.,  83. 

2  Bohn  V.  Devlin,  28  Mo.,  319. 

3  Clement  v.  Brooks,  13  N.  H.,  92. 

4  Phillips  V.  Bowen,  2  Pa.  St.,  20. 


NOTICE   OF   TAKING    DEPOSITIONS.  '  617 

opposite  party.^  But  where  the  notice  was  to  take  the  dep- 
osition on  the  20th  and  21st,  one  talven  on  the  21st  was  re- 
jected.- And  where  the  notice  in  another  case  stated  that 
the  deposition  would  be  taken  on  the  4th,  5th  and  6th  days 
of  the  month,  it  was  held  insufficient  because  of  its  indefi- 
nite statement  of  the  time  of  taking.* 

§  1231.  Mistake  in  Date  of  Taking. —  Clerical  mistakes 
in  stating  the  day  fixed  for  taking  the  deposition  will  be 
governed  by  the  same  liberal  rule  applied  to  other  casual 
errors.  So  where  the  date  fixed  by  the  notice  was  "  Monday 
the  26th,"  etc.,  and  the  deposition  noticed  u^as  taken  on  the 
26th,  it  was  held  properly  admissible,  though  the  26th  day 
of  the  month  did  not  fall  on  Monday.'* 

§  1232.  General  Requisites. —  In  general,  a  notice  of 
the  contemplated  taking  of  depositions,  which  contains  a 
clear  statement  of  the  day  and  hour  of  taking,  the  name  of 
the  city,  town  or  \nllage,  and  the  house,  office  or  room,  des- 
ignated by  number  or  other  certain  description,  where  they 
are  to  be  taken,  together  with  the  names  of  the  parties  be- 
tween whom  the  suit  is  pending,  wUl  be  found  sufficient  to 
entitle  such  depositions  to  be  read  in  evidence.^ 

§  1233.  Time  of  Seryice. —  An  important  matter  to  be 
considered,  in  determiMng  whether  a  notice  of  this  kind  is 
sufficient,  is  whether  it  was  served  a  sufficient  time  before 
the  day  appointed  for  the  taking  of  depositions.  This  is, 
in  many  of  the  states,  settled  definitely  by  statute ;  and 
where  a  certain  number  of  days  are  so  prescribed,  the  depo- 
sition will  not  be  admissible  against  the  opposite  party's 
objections,  if  the  notice  has  been  given  for  a  shorter  time,^ 

§1234.  Time  Decided  by  Court.— But  all  statutes  reg- 
ulating the  taking  of  depositions  are  not  so  definite  or  spe- 

1  Thomas  v.  Davis,  7  B.  Mon.,  237. 

2  Jordan  v.  Hazard,  10  Ala.,  231. 
^Humphries  v.  McCraw,  9  Ark.,  91. 
<Rand  v.  Dodge,  17  N.  H.,  343. 

^Bundy  V.  Hyde,  50  N.  H.,  116;  Alexander  v.  Alexander,  5  Pa.  St., 
277. 
'Travis  v.  Brown,  43  Pa.  St.,  9;  Congdon  v.  Anderson,  30  HI.,  95. 


618  PKACTICE   AND   PLEADING. 

cific.  By  the  employment  of  general  and  rather  indefinite 
terms,  they  throw  upon  the  com*ts  the  responsibility  of 
deciding,  as  a  question  of  law,  what  is  a  sufficient  time  for 
a  notice  of  this  kind.  As  where  the  party  proposing  to 
take  the  deposition  is  required  to  give  notice  in  a  reasonable 
time,  to  enable  the  party  notified  to  appear  and  procure  the 
attendance  of  counsel,^  the  courts  are  compelled  to  deter- 
mine what  is  a  reasonable  time,  and  in  reaching  a  conclu- 
sion will  be  governed  by  the  circumstauccs  of  each  particular 
case.-  Even  less  definite,  if  possible,  is  the  term  "  due  no- 
tice ; "  and  when  the  statute  is  not  more  specific  in  prescrib- 
ing the  time  for  which  notice  is  to  be  given,  the  determination 
is  left  entirely  to  the  discretion  of  the  court  or  the  presid- 
ing judge  thereof.'' 

§  1235.  Computation  of  Time  and  Distance. —  And  even 
where  the  time  is  prescribed  by  statute,  it  must  necessarily 
be  subject  to  variation,  according  to  the  distance  of  the 
part^^'s  residence  from  the  place  of  taking  the  deposition.^ 
This  casts  upon  the  court  the  duty  of  deciding  between 
various  routes  of  travel,  by  which  the  distance  shall  be 
reckoned.  Accordingly,  it  was  held  in  one  case  where  the 
statute  prescribed  three  days'  notice,  with  an  additional  day 
for  every  twenty  miles  of  travel  between  the  place  of  serv- 
ice of  the  notice  and  the  place  of  taking,  that  though  by 
river,  which  was  the  most  expeditious  mode  of  travel  be- 
tween the  two  points,  the  distance  was  so  great  that  the 
notice  would  be  for  too  short  a  time,  yet,  as  by  the  usual 
land  route  the  time  was  sufficient  to  allow  one  day  addi- 
tional to  each  twenty  miles,  the  notice  was  held  sufficient.^ 
Judicial  construction  has  even  been  found  necessary  to  de- 
termine what  was  meant  by  "  ten  days'  notice."     In  one 

iKimpton  v.  Glover,  41  Vt.,  283;  Stephens  v.  Thompson,  28  Vt.,  77; 
Phelps  V.  Hunt,  40  Conn.,  97. 
2  Atwood  V.  Fi-icot,  17  Cal.,  37. 
*  Harris  v.  Brown,  63  Me. ,  51. 
< Porter  v.  Pillsbury,  36  Me.,  278. 
^Lindaur  v.  Mutual  Safety  Insurance  Co.,  13  Ark.,  461. 


NOTICE   OF  TAKING  DEPOSITIONS.  619 

case,  it  was  held  to  mean  notice  received,  instead  of  notice 
sent,  ten  days  prior  to  the  taking.^  In  another,  it  was  held 
that  notice  on  the  5th  of  the  month,  of  Avhat  was  to  trans- 
pire on  the  15th,  was  a  sufficient  compliance  with  the  rule 
for  ten  days'  notice ;  the  time  being  computed  by  exclud- 
ing either  the  first  or  the  last  day,  which  is  the  common 
method.^  But  where  six  days  were  required  for  thirty 
miles,  notice  served  on  the  21st,  for  taking  on  the  26th,  was 
held  insufficient.^  Under  a  rule  for  taking  depositions  on 
twenty  days'  notice,  it  was  xery  justly  held  that  such  rule 
could  not  apply  to  cases  where,  from  the  distance  between 
the  place  of  trial  and  the  place  of  taking,  it  would  be 
physically  impossible  to  travel  to  and  fro  between  the  points 
within  that  time/  In  the  same  case,  it  was  held  that  forty- 
five  days  was  sufficient  time  between  San  Francisco,  Cali- 
fornia, and  the  state  of  ISTew  Hampshire. 

§  1236.  Absence  of  Statute  or  Rule. —  Where  there  is 
no  statute  or  fixed  rule  allowing  so  many  days  for  so  many 
miles,  the  court  will  inquire  more  particularly  as  to  the  time 
necessary  to  travel  the  distance,  by  the  customary  routes 
and  the  usual  modes  of  travel,  than  as  to  the  nmnber  of 
miles  composing  the  distance.  Accordingly,  it  was  decided 
that  ten  days  were  sufficient  for  a  notice  to  take  depositions, 
at  a  distance  of  fifteen  hundred  miles  from  the  court,  when 
it  was  shown  that  the  entire  distance  could  be  traveled  in 
six  days.^  So,  where  the  usual  mode  of  travel  was  by  rail- 
road, the  court  took  judicial  notice  of  that  fact,  and  thirty- 
six  hours  being  sufficient  for  the  journey,  eight  days  were 
held  amply  sufficient  for  the  notice.^  For  the  same  reasons, 
it  was  held,  in  the  same  state,  that  nine  days'  notice  of  the 
taking  of  depositions  in  the  city  of  New  York  would  suffice 

iGooday  u  Corlies,  1  Strob.  (S.  C),  199. 

2  Arnold  v.  Nye,  23  Mich.,  286. 

3  Richardson  v.  Burlington  &  M.  R.  R.  R.  Co.,  8  Iowa,  260 
^Gerrishv.  Pike,  36  N.  H.,  510. 

5 Carlisle  v.  Tuttle,  30  Ala.,  613. 
6  Hipes  V.  Cocliran,  13  Ind.,  175. 


620  PRACTICE    AXD    PLEADING. 

to  entitle  them  to  be  read  in  evidence  on  a  trial  in  the  state 
of  Indiana.^ 
§  1237.  Time   Not  Always  Governed  by  Distance. — 

On  the  other  hand,  the  mere  fact  that  the  distance  is  short 
will  not  ahvaj^s  abbreviate  the  time  required  for  notice,  so 
that  the  time  and  distance  will  bear  the  same  relation  to 
each  other  as  when  the  distance  is  longer.  In  fact,  the  dis- 
tance between  the  two  points  is  only  to  be  considered  with 
reference  to  its  bearings  upon  the  question  of  prime  impor- 
tance, whether  the  notice  is  given  in  time  to  enable  the 
party  notified  to  be  present  and  procure  the  attendance  of 
his  counsel.  For,  however  short  the  distance  may  be,  if  the 
notice  is  not  given  in  time  enough  to  afford  the  opposite 
party  an  opportunity  to  attend  the  taking  of  the  deposition, 
it  will  be  held  insufficient.- 

§  1238.  Time  Not  Fixed  by  Special  Circumstances. — 
It  is  not  intended  to  convey  the  idea  that  every  case  is  to 
furnish  its  own  rule,  and  be  governed  by  the  particular  cir- 
cumstances affecting  the  conduct  of  the  parties.  The  time 
wiU  not  be  lengthened  or  shortened  to  suit  the  mere  con- 
venience of  the  parties,  nor  will  the  interposition  of  unfore- 
seen obstacles,  by  which  the  party  notified  is  prevented 
from  attending  the  takiug,  be  considered  as  entitling  him 
to  further  time,  or  as  deciding  what  length  of  time  was 
necessary  in  the  particular  case ;  and  when  a  certain  day  and 
hour  are  mentioned  in  the  notice,  which  as  a  rule  would 
prove  sufficient,  the  opposite  party  cannot  claim  any  addi- 
tional time,  because  the  peculiar  exigencies  of  his  situation 
prevented  his  attendance.'' 

§1239.  Except  Wlien  Unusually  Short. —  Yet,  when 
the  time  is  very  short,  it  usually  requires  an  entire  absence 
of  impediments  to  render  it  sufficient.  As,  where  the  no- 
tice was  served  during  the  afternoon  of  Saturday,  by  leav- 
ing it  in  writing  at  the  residence  of  the  plaintiff,  during  his 

I  Manning  v.  Gasharie,  27  Ind.,  399. 
2Fantv.  mUer,  17  Gratt.  (Va.),  187. 
3  Morrill  v.  Moulton,  40  Vt.,  242. 


NOTICE    OF   TAKING    DEPOSITIONS.  C21 

absence,  with  a  member  of  his  family,  informing  him  that 
the  deposition  would  be  taken  on  the  following  Monday  at 
the  hour  of  2  o'clock  in  the  afternoon,  and  the  plaintiff  re- 
turned home  on  Saturday  evening  and  received  the  notice, 
but  could  not  attend  without  his  attorne}",  who  was  engaged 
elsewhere,  the  deposition  was  suppressed  on  account  of  in- 
sufficient notice.^  In  another  case,  however,  where  the 
notice  was  served  at  8  o'clock  in  the  evening,  of  the  taking 
of  depositions  at  8  o'clock  on  the  morning  of  the  next  day, 
the  parties  both  residing  in  the  same  city  where  the  deposi- 
tions were  to  be  taken,  and  there  appearing  no  special  rea- 
son why  they  could  not  attend  on  the  short  notice  given,  it 
was  held  sufficient,  though  the  court  was  in  session  at  the 
time.- 

§  1240.  Statutory  Time  May  Ibe  Shortened. —  Under 
the  California  statute  the  service  of  a  copy  of  an  order  of 
court,  to  appear  and  show  cause  why  a  commission  should 
not  issue,  is  sufficient  notice,  and  if  the  time  fixed  by  the 
order  for  the  party  to  appear  is  less  than  that  prescribed  by 
statute  for  a  notice,  it  is  equivalent  to  an  order  shortening 
the  time,  which  seems  to  be  within  the  scope  of  the  powers 
of  the  court,' 

§  1241.  Objections  to  Time  —  When  Taken.— It  is 
sometimes  maintained  that  any  objections  to  the  deposition, 
on  account  of  the  shortness  of  the  time,  should  be  taken  be- 
fore the  trial.*  In  any  event  they  should  be  interposed  be- 
fore the  deposition  in  question  has  been  read  in  e\ddence. 
"Where,  however,  the  objections  are  raised  by  the  attorney  of 
the  party  at  the  taking  of  the  deposition  —  he  appearing 
for  that  purpose  only,  and  refusing  to  cross-examine  wit- 


1  Masters  v.  'Warren,  27  Conn.,  293. 

2McGinnis  v.  "Wasliington  Hall  Association,  12  Gratt.,  603. 

SDambmann  v.  White,  48  Cal.,  439.  But  an  order  abbreviating  the 
statutory  period  must  prescribe  the  time  of  notice.  Howell  v.  Howell, 
5  West  Coast  Rep.,  286. 

*  Cornelius  v.  Partain,  39  Ala.,  473. 


622  PKACTICE    AND    PLEADING. 

nesses,  there  is  no  doubt  but  that  the  objections  are  timely, 
and  if  well  taken,  the  deposition  will  be  rejected.^ 
§  1 242.  Party  Must  Show  Himself  Entitled  to  Time.— 

Before  a  motion  to  sup])ress  a  deposition  on  the  ground  of 
insufficient  time  can  be  sustained,  the  party  objecting  must 
show  affirmatively  that  he  was  fairly  entitled  to  the  time  of 
which  he  claims  to  have  been  wrongfully  deprived.^  Where 
there  is  an  agreement  between  parties,  or  their  counsel,  to 
take  depositions  on  shorter  notice  than  that  prescribed  by 
statute,  those  taken  in  pursuance  of  such  arrangement  may 
be  read  in  evidence  as  though  they  were  taken  upon  notice 
for  the  statutory  time.  But  whatever  the  agreement  or 
understanding  between  the  parties  may  be,  in  order  to  be 
effective,  it  must  be  faithfully  carried  out.  It  was  accord- 
ingly held,  where  an  agreement  was  entered  into  between 
counsel  to  take  depositions  on  one  day's  notice,  and  there 
was  a  failure  to  give  the  notice  for  the  time  agreed  upon  to 
the  proper  party,  that  the  testimony  taken  on  behalf  of  one 
of  the  parties  was  properly  ruled  out  on  the  trial.^ 

§  1243.  Service  of  Notice. —  It  is  important  to  know  in 
every  instance  that  the  notice  was  addressed  to  the  proper 
party,  and  was  properly  served.  This  is  one  of  those  no- 
tices which  may  with  peculiar  propriety  be  served  upon  the 
attorney  of  record  of  the  opposite  part}^.'*  But  when  so 
served,  it  should  be  a  sufficient  time  before  the  taking  to 
give  the  attorney  an  opportunity  to  communicate  with  his 
client.^  It  has  even  been  held  that  the  notice  might  be 
served  upon  the  attorney,  after  information  received  that 
he  had  retired  from  the  case,  and  it  would  be  sufficient  to 
charge  the  opposite  party  with  notice  of  the  taking  of  the 
deposition ;  **  but  this  cannot  be  regarded  as  justifying  the 

1  Beasley  v.  Downey,  10  Ired.,  284. 

2  Adams  v.  Peck,  4  Iowa,  551. 

3  Bohr  V.  Steamboat  Baton  Rouge,  7  Sm.  &  M.,  715. 

4  Bailey  v.  Wright,  24  Ark.,  73;  Hunt  v.  Crane,  33  Miss.,  669. 
5 Hunt  V.  Crane,  33  Miss.,  669. 

«Herrin  v.  Libbey,  36  Me.,  350. 


NOTICE   OF   TAKING   DEPOSITIONS.  623 

service  of  notice  upon  one,  merely  because  of  liis  antecedent 
engagement  as  attorney  in  the  case,  where  he  has  not  only 
retired,  but  had  the  fact  of  his  retirement  properly  entered 
upon  the  records  of  the  court.  The  only  instance  in  which 
it  would  be  proper  to  serve  such  a  notice  upon  an  attorney, 
after  the  cessation  of  his  active  connection  with  the  suit, 
would  be  where  he  still  remained  the  attorney  of  record, 
awaiting  the  substitution  of  another  in  his  stead.  It  is  not 
essential  at  all  times  that  the  attorney  of  record  should  be 
served.  As  where  the  notice  of  retainer  and  the  answer 
were  filed  by  one  attorney,  and  the  trial  was  conducted 
throughout  by  another,  who  had  never  been  formally  sub- 
stituted as  attorney  of  record,  the  notice  was  held  properly 
served  upon  the  latter.^ 

§1244.  Insufficient  Service. —  Where  the  notice  was 
served  upon  one,  neither  an  attorney  of  record  in  the  case, 
nor  an  adverse  party,  the  deposition  was  held  inadmissible.^ 
Service  upon  the  attorney  is  regarded  as  sufficient,  only 
when  there  is  no  statute  or  rule  of  court  requiring  personal 
service  upon  the  party.  It  was  accordingly  held,  where  the 
rules  provided  for  service  upon  the  attorney,  except  where 
the  statute  or  "  these  rules  "  directed  otherwise,  and  there 
was  an  old  rule  requiring  the  notice  to  be  served  upon  the 
opposite  party,  that  the  notice  served  upon  the  attorney  was 
insufficient.^ 

§  1245.  Upon  Several  Co-parties. —  As  to  the  manner 
of  serving  several  co-parties,  interested  adversely  to  the 
party  giving  notice,  the  authorities  are  not  in  perfect  accord, 
it  being  held  that  service  upon  one  of  such  parties  will  be 
sufficient  notice  to  all,*  while,  on  the  other  hand,  it  has  been 
decided  that  a  deposition  cannot  be  offered  in  evidence 
against  one  of  two  joint  defendants  who  has  not  been  noti- 

iKing  V.  Ritchie,  18  Wis.,  554. 

2  Brown  v.  Ford,  52  Me.,  479. 

3  Fleming  v.  Beck,  48  Pa.  St.,  309. 

4Spaulding  v.  Ludlow,  etc.,  Mill,  36  Vt.,  150;  Ellis  v.  Lull,  45  N.  H., 
419. 


624  PKACTICE    AND    PLEADING. 

fied,  merely  because  his  co-defendant  has  been  duly  served 
■with  notice  of  the  taking.'  In  the  case  of  Spanlding  v. 
Ludlow,  etc.,  Mill,-  the  rule  is  declared  with  the  quahfication 
that  good  faith  should  be  used  in  selecting  the  one  to  be 
served,  so  that  the  interests  of  all  may  be  protected.  The 
case  of  Ellis  v.  Lull  '■'  is  decided  under  a  statute  expressly 
providing  that  service  shall  "  be  upon  the  opposite  party,  or 
one  of  them.''''  It  may  be  held,  where  the  adverse  parties 
sustain  toward  each  other  relations  of  a  peculiarly  intimate 
character,  as  that  of  husband  and  wife,  partnership,  etc., 
that  service  upon  one  is  equivalent  to  service  upon  both  or 
all ;  but  it  is  difficult  to  understand  why  the  mere  fact  that 
several  persons  have  been  joined  as  parties  defendant  in  the 
same  suit  should  establish  such  a  close  connection  between 
them  that  they  are  supposed  to  communicate  to  each  other 
every  fact  in  relation  to  the  controversy  coming  to  their 
knowledge.  The  depositions  to  be  taken  may  be  offered  as 
evidence  of  facts  of  very  little  or  no  interest  whatever,  to 
the  party  notified,  while  the  evidence  thus  produced  would 
be  fatal  to  the  defense  of  the  party  who  was  left  in  ignorance 
of  taking  them.  But  when  there  has  been  a  failure  to  notify 
one  of  several  joint  plaintiffs  or  defendants,  it  seems  quite 
clear  that  he  alone  can  urge  such  failure  in  support  of  an 
objection  to  the  deposition  when  offered  in  evidence.^ 

§1246.  Strict  Personal  Service  Not  Required. —  Gen- 
erally, notices  of  this  kind  do  not  require  strict  personal 
'service,  either  upon  the  party  or  his  attorney.  Even  where 
the  statute  has  not  prescribed  the  mode  of  service  otherwise 
than  by  personal  delivery,  it  is  sometimes  held,  on  the  au- 
thority of  analogous  cases,  that  it  may  be  properly  served 
by  leaving  it  with  some  one  at  the  place  of  business  or  resi- 
dence of  the  party  or  his  attorney.^  -  But  where  the  statute 

1  McConneU  v.  Stettinius,  7  lU.,  707. 
-Supra,  §  1245. 
^  Supra,  %  1245. 

^  Glenn  v.  Glenn,  17  Iowa,  498 ;  infra,  %  1249. 

5  Goodloe  V.  Bartlett,  5  McLean,  186;  Prather  v.  Pritchard,  26  Ind.,  65; 
Merrill  v.  Dawson,  1  Hemp.,  563. 


NOTICE   OF   TAKING    DEPOSITIONS.  025 

required  that  notice  should  be  "  served  on  the  adverse  party 
or  his  attorney,  as  either  may  be  nearest,"  etc.,  it  was  hekl 
not  to  be  a  sufficient  compliance  to  leave  such  notice  at  the 
usual  place  of  abode  of  either,  with  any  one  other  than 
the  party  or  his  attorney.^ 

§1247.  Proof  of  Service. —  The  best  evidence,  and 
that,  in  fact,  which  is  generally  prescribed,  either  by  statute 
or  rule  of  court,  of  the  service  of  notice,  is  the  notice  itself, 
or  a  properly  authenticated  copy  thereof,  attached  to  and 
inclosed  with  the  deposition,-  and  the  deposition  must  show 
upon  its  face  that  it  was  taken  at  the  time  and  place  men- 
tioned in  the  notice.^  Parol  proof,  however,  of  the  service 
of  notice  has  been  held  sufficient.^ 

§  1248.  Upon  Attorneys  in  Partnership. —  When  the 
notice  is  addressed  to  attorneys-at-law  by  their  firm  name, 
they  appearing  by  the  record  to  be  attorneys  in  the  case,  it 
is  not  necessary  that  the  return  on  the  notice,  where  it  is 
served  by  the  sheriff,  should  contain  the  statement  that 
they  are  such  attorneys,  or  that  they  were  served  in  that 
capacity.  And  when  the  notice  appears  to  have  been  de- 
livered to  a  person  bearing  the  same  name  as  one  of  the 
partners,  it  will  be  sufficient.  The  court  will  take  judicial 
notice  that  they  are  the  attorneys  of  record,  and  it  will  be 
presumed  that  they  were  notified  of  the  intention  to  take 
depositions  in  the  capacity  in  which  they  filed  the  declara- 
tion. It  will  also  be  presumed  that,  in  making  the  service, 
the  officer  did  his  duty,  and  consequently  that  the  person 
served  as  a  member  of  such  firm  was  one  of  the  partners.^ 

§  1249.  When  Depositions  to  he  Used  in  Two  Cases.— 
Where  notice  was  given  of  the  intention  to  use  the  deposi- 
tion to  be  taken,  in  two  separate  actions,  pending  at  the 
same  time  in  the  same  court,  it  was  held  sufficient  to  author- 

iCarrington  v.  Stimson,  1  Curtis,  Ct.  Ct.,  437. 

2  Carlton  v.  Patterson,  29  N.  H.,  580. 

3  Young  V.  Mackall,  4  Md.,  362. 
♦Pickard  v.  Polhimus,  3  Mich.,  185. 
5  Reese  v.  Beck,  24  Ala.,  051. 

40 


G26  PRACTICE    AXD    PLEADING. 

ize  the  reading  of  the  deposition  in  both  suits ;  ^  but  where 
there  are  different  parties  to  the  suits,  though  both  are  con- 
cerning the  same  subject-matter,  the  deposition  will  not  be 
received  in  evidence  against  a  party  who  has  not  been  noti- 
fied, and  had  an  opportunity  to  be  present  and  cross-examine 
the  witnesses."  Where,  however,  the  testimony  is  taken  under 
a  notice  entitled  in  two  actions,  between  the  same  parties, 
it  will  be  presumed,  in  the  absence  of  any  showing  to  the 
contrary,  that  tliey  were  upon  the  same  matter,  and  that  no 
substantial  rights  have  been  affected  by  giving  one  notice 
of  taking  depositions  for  both  cases.' 

§  1  250.  Postponement  by  Consent. —  As  important  as  is 
the  observance  of  the  day  and  hour  indicated  by  the  notice, 
the  deposition  may  be  taken  on  a  subsequent  day,  or  be- 
tween other  hours,  when  both  parties  appear,  either  in  per- 
son or  by  attorney,  at  the  time  indicated,  and  consent  to  a 
•  postponement;  but  in  order  that  the  deposition  may  be 
admissible  in  evidence  against  objections  from  the  opposite 
]jarty,  the  certificate  of  the  officer  before  whom  it  was 
taken,  that  the  examination  was  postponed  by  consent,  is 
necessary.^ 

§  1251.  Effect  of  Acknowledgment  of  Service. —  Even 
where,  by  statute  or  rule  of  court,  a  certain  time  is  fixed 
for  the  notice,  such  time  may  be  abbreviated  by  consent  of 
the  parties  or  their  counsel,  by  a  written  acknowledgment 
of  due  service  indorsed  upon  the  notice  or  interrogatories, 
or  written  upon  a  separate  paper,  which  indicates  with  cer- 
tainty the  suit  in  which  the  deposition  is  to  be  used.^  So, 
where  the  notice  was  sent  by  mail,  addressed  to  the  attorney 
of  the  opposite  party,  and  in  due  time  was  returned  bearing 
an  admission  of  notice  indorsed  thereon,  which  was  acted 

1  Scott  V.  Bullion  Mining  Co.,  2  Nev.,  81. 
2 Rutherford  v.  Geddes,  4  Wall.,  220. 
3Laithe  v.  McDonald,  7  Kan.,  254. 
*  Lewin  v.  Dille,  17  Mo.,  64. 

^CheiTjv.  Baker,  17  Md.,  75;  Scott  v.  Scott,  id.,  78;  Atwood  v.  Fricot, 
17  Cal.,  37;  Moore  v.  Gammel,  13  Tex.,  120. 


NOTICE   OF   TAKING   DEPOSITIONS.  627 

upon  under  the  belief  that  it  was  signed  by  authority  of  the 
attorney,  it  was  held  that  a  motion  to  suppress  the  deposi- 
tion for  the  want  of  notice,  it  appearing  that  the  attorney 
was  absent  on  receipt  of  the  notice,  and  the  same  was 
acknowledged  by  his  son  and  law  partner,  was  properly 
overruled  b}''  the  trial  court.' 

§  1252.  Alteration  of  Notice. —  The  deposition  may  be 
open  to  objection  on  account  of  alterations  made  in  the 
notice  after  service ;  but  where  an  alteration  appears  on  the 
face  of  the  notice  attached  to  the  deposition,  it  will  not  be 
presumed  to  have  been  made  after  service.^ 

§  1253.  Objections  Waived. —  All  objections,  however, 
to  the  notice  for  insufficiency  of  statement,  defective  service, 
or  even  the  entire  absence  of  notice,  may  be  waived  by  the 
party  entitled  thereto,  by  appearance  in  person  or  by 
attorney,  at  the  taking  of  the  deposition,  and  cross-examina- 
tion of  the  witnesses,  without  raising  the  objection  then  and 
there.^  In  any  event,  the  objection  that  no  notice  was 
served,  cannot  be  raised  for  the  first  time  in  the  appellate 
court/  So,  the  fifing  of  cross-interrogatories,  without  ob- 
jection, has  been  held  to  be  a  waiver  of  objections  to  the 
notice,  on  account  of  irregularities,  whether  relating  to  its 
contents  or  manner  of  service.* 

§  1254.  Waiver  by  Presence. —  The  mere  presence  of 
the  party  or  his  attorney,  at  the  taking  of  the  deposition, 
seems  in  some  instances  to  have  been  taken  as  a  sufficient 
Avaiver  of  the  objection  that  notice  was  entirely  wanting." 

1  Brown  v.  Clement,  68  111.,  192. 

2  Davis  V.  Davis,  48  Vt.,  502. 

3  Aicardi  v.  Strang,  38  Ala.,  326;  County  of  Greene  v.  Bledsoe,  12  111., 
267;  McCormack  v.  Irwin,  35  Pa.  St.,  Ill;  Nevan  v.  Roup,  8  Iowa, 
207;  Jones  v.  Love,  9  Cal.,  68;  Doe  v.  Brown,  8  Blackf.,  443;  Caldwell 
V.  McVicar,  9  Ai-k.,  418. 

*DiU  V.  Camp,  22  Ala.,  249. 

5  Aicardi  v.  Strang,  38  Ala.,  326. 

6  Milton  y.  Eowland,  11  Ala.,  732;  State  v.  Bassett,  33  N.  J.  L.,  26; 
Crooker  v.  Appleton,  25  Me.,  131;  Pres't,  etc.,  of  Connersville  v.  Wood- 
leigh,  7  Blackf.,  102. 


628  PRACTICE   AND   PLEADING. 

Where  tlie  appearance  of  the  party,  against  whom  the 
deposition  is  to  be  used,  is  certified  to  by  the  officer  in  such 
a  manner  as  to  leave  no  doubt  that  he  was  present,  acqui- 
escing in  the  taking  of  the  same,  this  would  probably  be  re- 
garded as  sufficient  evidence  of  a  waiver;  but  where  his 
presence  is  noticed  in  the  certificate,  in  connection  with  the 
further  fact  that  he  refuses  to  recognize  the  validity  of  the 
examination,  by  word  or  deed,  such  appearance  can  hardly 
be  construed  into  a  waiver  of  objections  to  antecedent 
irregularities. 

§  1255.  May  he  Present  Without  Waiver. —  Even  where 
the  attorney  appearing  for  the  party  entitled  to  notice  cross- 
examines  the  witnesses  produced  by  his  adversary,  this  of 
itself  will  not  amount  to  a  waiver  of  the  objection  that  notice 
was  not  given  a  sufficient  time  before  taking  the  deposition, 
when  the  attorney  appearing  does  so  under  protest  and 
with  an  express  reservation  of  the  right  of  his  client  to  ob- 
ject to  the  deposition  at  the  trial,  for  the  want  of  notice.  The 
time  given  is  not  intended  alone,  for  going  and  coming  be- 
tween the  residence  of  the  party  notified  and  the  place  of 
caption,  but  for  consultation  and  preparation.  The  party 
is  not  obliged  to  forbear  attending  the  examination.  It  is 
impossible  for  him  to  say  whether  the  deposition  will  be  ad- 
mitted or  not,  against  his  objection.  It  may  turn  out,  during 
the  taking  of  the  deposition,  that  notwithstanding  the  short- 
ness of  the  notice,  it  is  sufficient  to  enable  him  to  cross- 
examine  intelligently,  so  that  he  may  not  desire  to  object. 
But  having  reserved  his  rights,  by  a  formal  objection  to  the 
taking  of  the  deposition,  he  forfeits  none  of  them  by 
remaining  during  the  examination,  and  even  cross-examining 
the  witnesses.^ 

§  1256.  Effect  of  Adjournment  Without  Consent.— It 
was  held  in  a  case  where  the  party  notified  was  present  with 
his  attorney  at  the  hour  named  in  the  notice,  and  waited 
until  he  was  informed  by  the  officer  that  the  hour  had  ex- 

iHunt  V.  Lowell,  etc.,  Co.,  1  AUen,  343. 


NOTICE   OF   TAKING   DEPOSITIONS.  629 

pired,  when  he  discharged  his  attorney  and  retired,  the 
sender  of  the  notice  having  telegraphed  for  an  adjournment 
to  a  later  hour,  and,  arriving  after  the  adjournment,  notified 
the  opposite  party  of  the  hour  to  which  the  taking  was  ad- 
journed, that  such  party  failing  and  refusing  to  appear  in 
recognition  of  the  validity  of  the  second  notice,  might  ob- 
ject to  the  admission  of  the  deposition  at  the  trial,  and 
such  objection  would  be  sustained.^ 

1  Hennessey  v.  Stewart,  31  Vt.,  486. 


630  PEACTICE   AJSTD   PLEADING. 


YI.  Notice  to  Produce  Books  and  Papers. 

§  1257.  General  Remarks. 

1258.  Necessary  to  the  Admission  of  Secondary  Evidence. 

1259.  Demand  Before  Suit  Not  Sufficient. 

1260.  Necessary  When  Pajier  Recorded. 

1261.  Rule  Same  in  Criminal  Prosecution. 

1262.  Exceptions. 

1263.  In  Action  of  Trover  —  Unnecessary. 

1264.  Assumpsit  —  Unnecessary. 

1265.  Debt  on  Bond  —  Unnecessary 

1266.  Action  of  Covenant  —  Unnecessary. 

1267.  Against  Constable  for  Failing  to  Make  Return— Unnecessary. 

1268.  Papers  Filed,  or  Mentioned  in  Pleadings. 

1269.  Papers  in  Court. 

1270.  Paper  Must  be  Traced  to  Opposite  Party. 

1271.  Proof  of  Possession  from  Ckcumstances. 

1272.  Papers  Under  Control  of  Adversary. 

1273.  Privity  Must  be  Clearly  Established. 

1274.  Paper  Passed  Out  of  Party's  Possession. 

1275.  May  Impeach  Copy. 

1276.  Not  by  Introduction  of  Original. 

1277.  Secondary  Evidence,  Even  When  Possession  Disproved. 

1278.  Must  be  Proved  When  Pi-oduced. 

1279.  Need  Not  be  Offered  When  Produced. 

1280.  Inference  Drawn  from  Failure  to  Produce. 

1281.  Notice  to  Produce  Notice  —  Unnecessary. 

1282.  Contents  of  Notice. 

1283.  Should  Not  be  Too  General. 

1284.  Generally  in  Writing. 

1285.  Renewal  Unnecessary  in  Case  of  Continuance. 

1286.  Time  of  Notice. 

1287.  Served  at  Trial,  Too  Late. 

1288.  Party  Not  Requu-ed  to  Incur  Expense. 

1289.  Original  Not  in  Existence. 

1290.  Opposite  Attorney  in  Possession  of  Paper. 

1291.  One  of  Several  Joint  Parties. 

1292.  Personal  Service  Not  Indispensable. 

§1257.  General  Remarks. —  When  a  fact  to  be  estab- 
lished on  the  trial  is  evidenced  by  a  written  or  printed  docu- 
ment, whether  it  be  a  book,  memorandum  of  agreement, 
promissory  note  or  specialty,  the  rule  requiring  the  best  at- 


NOTICE  TO  PRODUCE  BOOKS  AND  PAPERS.        631 

tainable  evidence  of  the  matter  in  issue  is  applied,  and  the 
original  of  the  writing  must  be  offered  if  obtainable.  It  is 
in  general  only  when  the  original  is  beyond  the  reach  of  the 
party  offering  the  evidence,  that  a  copy,  or  parol  testimony 
of  its  contents,  may  be  substituted  for  the  highest  grade  of 
evidence.'  It  is  not  alone  the  loss  or  destruction  of  the'  docu- 
ment that  will  place  it  beyond  the  reach  of  tlie  party  de- 
siring to  offer  it.  The  opposite  party  may  have  it  in  his 
possession,  in  which  event  a  notice  to  him  to  produce  the 
instrument  at  the  trial  will  have  the  effect  to  bring:  it  to 
light,  or,  failing  in  this,  will  entitle  the  party  calling  for  the 
document  to  introduce  secondar}'-  evidence  of  its  contents.^ 
§  1258.  Necessary  to  the  Admission  of  Secondary  Evi- 
dence.—  Generally,  secondary  evidence  of  the  contents  of 
books  and  papers  in  the  hands  of  the  opposite  party  cannot 
be  given,  without  reasonable  notice  to  produce  the  originals. 
As  where,  in  an  action  on  account,  defendant  offered  in  evi- 
dence a  receipt,  which  plaintiff  testified  was  originally  at- 
tached to  a  letter,  a  sworn  copy  of  which  he  offered  in 
evidence  without  a  previous  notice  to  produce  the  original, 
it  was  held  error  to  receive  such  secondary  evidence.^  So 
Avhere  suit  was  brought  upon  an  agreement,  the  written 
memorandum  of  which  was  in  the  hands  of  the  other  party, 
a  copy  of  such  agreement  was  held  incompetent  to  prove  its 
contents  without  a  previous  notice  to  produce  the  origi- 
nal.*    So,  also,  in  case  of  a  lost  letter  written  by  the  oppo- 

1  United  States  v.  Winchester,  2  McLean,  135;  Potier  v.  Barclay,  15 
Ala.,  439;  Anderson  Bridge  Co.  v.  Applegate,  13  Ind.,  339;  Williams  v. 
Benton,  12  La.  An.,  91 ;  Farmers'  &  Merchants'  Bank  v.  Lonergan,  21  Mo., 
46;  Grimes  r.  Fall,  15  Cal.,  63;  Commonwealth  v.  Emery,  2  Gray,  80; 
Foster  v.  Newbrough,  58  N.  Y.,  481 ;  Garland  v.  Cunningham,  37  Pa.  St., 
228;  Mai-low  v.  Marlow,  77  111.,  633. 

2Bronson  v.  Kensey,  3  McLean,  180;  Auger,  Steel,  etc.,  Co.  t'.  Whit- 
tier,  117  Mass.,  451;  Anon.,  1  Nott  &,  McCord,  604;  McKillip  v.  Mcll- 
henny,  4  Watts,  317;  Gates  v.  Winter.  3  T.  R.,  306;  United  States  r. 
Winchester,  2  McLean,  135;  Harris  r.  Wliitcomb,  4  Gray,  433;  Ander- 
son V.  Applegate,  13  Ind.,  339;  Marlow  v.  Mai-low,  77  111.,  633. 

SMilUken  v.  Barr,  7  Pa.  St.,  23;  Fosters.  Newbrough,  58  N.  Y.,  481. 

<  Garland  v.  Cunningham,  37  Pa.  St.,  228. 


632  PEACTICE   AND   PLEADING. 

site  party,  it  was  lield  incumbent  upon  the  party  seeking  to 
prove  its  contents,  to  give  notice  to  the  writer  to  produce 
his  letter  book,  supposing  the  letter  to  be  a  duplicate  orig- 
inal.^ 

§1259.  Demand  Before  Suit  Not  Siifflcient.— A  de- 
mand made  before  suit,  upon  the  party  in  possession  of  the 
document,  which  the  party  making  demand  wishes  to  offer 
in  evidence,  will  not  be  treated  as  equivalent  to  a  notice  to 
produce,  even  where  the  refusal  to  furnish  it  is  the  immediate 
cause  of  the  suit,  except  where  the  action  is  for  the  conver- 
sion of  an  instrument  of  some  value  and  the  pleadings 
allege  that  it  is  in  the  possession  of  the  defendant.^ 

§1260.  Necessary  When  Paper  Recorded. —  Neither 
will  the  mere  fact  that  the  paper  has  been  recorded  excuse 
notice  to  produce,  so  as  to  admit  secondary  evidence  of  its 
contents,  in  the  first  instance,  where  the  record  has  been 
destroyed.^  However,  the  general  rule  as  to  notice  to  pro- 
duce would  not  apply  to  recorded  instruments,  where,  upon 
proper  preliminary  proof  that  the  party  had  made  due 
search  and  inquiry,  and  was  unable  to  produce  the  original, 
he  is  permitted  to  use  a  certified  copy  instead.* 

§  1261.  Rule  Same  in  Criminal  Prosecution. —  But  the 
rule  is  applicable  to  criminal  prosecutions,  substantially  the 
same  as  to  civil  cases;  though  a  different  view  of  the  law 
seems  to  have  obtained  with  the  court  in  the  decision  of 
one  case.^  There  it  was  held  that  notice  to  produce  was  not 
necessary,  in  order  to  introduce  a  copy  of  the  original  paper, 
when  such  original  was  in  the  hands  of  the  accused,  and 
would  be  offered  by  the  state  against  him ;  the  reason  as- 
signed for  this  holding  was  that  there  was  no  jpoioer  in  the 
court  to  comjpel  the  accused  to  produce  a  j;aj?6/'  which  might 
he  evidence  against  himself.     The  best  considered  cases,  how- 

1  Dennis  v.  Barber,  6  Serg.  &  R.,  430. 

-'Mullerv.  Hoyt,  14  Tex.,  49;  Lathrop  v.  Mitchell,  47  Ga.,  610. 

aMui-chison  v.  McLeod,  2  Jones  (N.  C.)  L.,  339. 

4  Bowman  v.  Wettig,  39  111.,  416. 

estate  V.  Gurnee,  14  Kan.,  111. 


NOTICE  TO  PRODUCE  LOOKS  AND  PAPERS.        633 

ever,  do  not  rest  the  rule  upon  the  power  of  the  court  to 
enforce  obedience  to  the  notice.  The  mere  service  of  a 
notice  by  the  opposite  party  does  not  ordinarily  render  a 
litigant  subject  to  the  compulsory  process  of  the  court,  as 
though  he  had  disobeyed  a  subpoena.  The  notice  required 
is  not  provided  as  a  means  of  compelling  the  production  of 
books  and  papers  in  cases  of  either  civil  or  criminal  cogni- 
zance.^ Its  purpose  seems  to  be  to  enable  the  party  notified, 
at  his  option,  to  produce  the  best  evidence  of  the  matter  in 
dispute,  or  to  submit  to  having  it  decided  against  him  upon 
evidence  secondary  in  its  character,  and  which  ma}^  be  dis- 
colored to  his  prejudice.  The  application  of  this  rule  to 
criminal  cases  is  advantageous,  rather  than  otherwise,  to  the 
accused.  It  was  accordingly  held,  where  defendant  was 
accused  of  forging  a  draft,  and  he  was  not  notified  to  pro- 
duce the  same,  that  secondary  evidence  of  its  contents  was 
inadraissible.- 

§  1262.  Exceptions. —  Where,  however,  the  prosecution 
is  for  the  theft  of  the  instrument,  or  for  otherwise  obtaining 
unlawful  possession  thereof,  notice  to  produce  is  not  neces- 
sary in  order  to  pave  the  way  for  the  introduction  of  sec- 
ondary evidence,  offered  to  prove  the  identity  or  value  of 
the  stolen  instrument,  or  for  any  other  purpose  material 
to  the  issue.^  But  the  reason  for  the  exception  in  such  cases 
is  not  that  the  court  forbears  to  compel  the  accused  to  pro- 
duce documentary  evidence  against  himself,  but  is  because  the 
nature  of  the  prosecution  informs  the  defendant  sufiiciently 
that  the  facts  which  can  be  best  proved  by  the  production 
of  the  paper  in  question  will  be  offered  in  evidence  against 
him.*     So  far  from  being  decided  on  the  'ground  of  exemp- 

1  JVIilliken  v.  Ban-,  7  Pa.  St.,  23;  Greeiileaf  on  Ev.,  §  560;  2  Tidd'sPr., 
802. 

2  The  Queen  v.  Elsworthy,  1  Cr.  Cas.,  103 ;  Le  Maxchand's  Case,  1  Leach 
Cr.  Cas.,  336,  note  a;  Layer's  Case,  id.;  Rex  v.  Haworth,  4  Carr.  & 
Payne,  234;  Commonwealths.  Goldstein,  114  Mass.,  272. 

3Com.  V.  Essinger,  1  Binney  (Pa.),  273;  McGinnis  r.  State,  24  Ind., 
500.  See,  also,  Pendleton  v.  Com.,  4  Leigh  (Va.),  694;  Aickles'  Case,  1 
Leach  Cr.  Cas.,  330. 

*  See  cases  cited  supixj. 


634  PEACTICE   AND   PLEADING. 

tion  from  self-criminating  testimony,  those  cases  are  so  de- 
cided in  pursuance  of  a  principle  common  to  cases  of  both 
civil  and  criminal  cognizance.  That  where,  from  the  nat- 
ure of  the  action  or  prosecution,  the  defendant  is  apprised 
of  plaintiff's  intention  to  charge  him  with  the  possession  of 
a  certain  writing,  or  where  the  declaration  or  indictment 
gives  him  notice  to  be  jjreparcd  to  produce  a  particular  in- 
strument, if  necessary  to  contradict  plaintiff's  evidence,  no 
further  notice  to  produce  need  be  given  before  secondary 
evidence  may  be  received.' 

§  1263.  In  Action  of  Trover  —  Unnecessary. — Where 
the  action  was  trover  for  a  bond,  alleged  to  be  in  the  posses- 
sion of  defendant,  plaintiff  was  allowed  to  give  parol  evidence 
of  its  contents  to  prove  a  general  description,  without  giv- 
ing notice  to  produce  the  original,  for  the  reason  that  suffi- 
cient notice  was  given  by  the  nature  of  the  action.- 

§  1264.  Assumpsit  —  Unnecessary. —  So,  also,  in  as- 
sumjpsit  against  the  proprietor  of  a  stage-coach,  in  whose 
possession  certain  promissory  notes  were  alleged  to  have 
been  last  seen,  upon  his  implied  promise  to  carry  such  notes, 
secondary  evidence,  descriptive  of  the  notes,  was  admitted 
in  the  absence  of  any  notice  to  produce.^ 

§  1265.  Debt  on  Bond — Unnecessary. —  And  where  in  an 
action  of  debt  on  a  bond  given  by  defendants,  one  of  whom 
was  a  collector,  to  a  former  treasurer,  conditioned  that  such 
collector  "  should  well  and  truly  collect  all  the  taxes  as- 
sessed," etc.,  and  pay  the  same  over  to  the  treasurer,  it  was 
denied  at  the  trial  that  the  warrant  for  the  collection  of 

iHoweU  V.  Huyck,  2  Abb.  App.  Dec.  (N.  Y.),  423;  People  v.  Holbrook, 
13  Johns.,  90;  2  Phil,  on  Ev.,  539  (Cow,  &  H,  &  Ed.  notes);  State  v.  May- 
berry,  48  Me.,  218;  Nealley  v.  Greenough,  25  N.  H,,  325. 

-'Howe  V.  Hall,  14  East,  274;  Scott  v.  Jones,  4  Taunt.,  865;  Hays  v. 
Eiddle,  1  Sandf.,  248;  McClean  v.  Hertzog,  6  Serg.  &  R.,  154;  Rose  v. 
Lewis,  10  Mich.,  483;  Ross  v.  Bruce,  1  Day,  100, 

3  Jolley  V.  Taylor,  1  Camp,,  143.  And  where  the  same  form  of  action 
was  Ijrought  to  recover  the  amount  of  an  attorney's  bill,  it  was  held 
that  an  unsigned  copy  might  be  read  in  evidence  to  prove  the  contents 
of  tlie  original  delivered  to  defendant.  Colling  v.  Ti-eweek,  6  B.  &  C, 
394.     Tliis  seems  extending  the  doctrine  of  the  text  a  great  way. 


NOTICE  TO  PRODUCE  BOOKS  Ai^D  PAPERS.        635 

taxes  referred  to  the  tax  list,  and  also  that  the  list  was 
signed  by  the  assessor,  as  required  by  law.  The  court  held 
that,  as  the  papers  were  in  the  hands  of  the  defendant,  and 
these  were  proper  matters  of  defense,  the  defendant  must 
have  understood  from  the  issues  raised  by  the  pleadings 
that  they  would  come  in  question,  so  no  notice  was  necessary.^ 

§  1266.  Action  of  Covenant  —  Unnecessary. —  So  in  an 
action  of  covenant,  where  the  pleadings  allege  the  posses- 
sion of  promissory  notes  or  other  papers  essential  to  be  used 
on  the  trial,  notice  to  produce  them  is  unnecessary.- 

§  1267.  Against  Constable  for  Failing  to  Make  Re- 
turn —  Unnecessary. —  It  has  also  been  held  that  in  a  pro- 
ceeding before  a  justice  of  the  peace,  against  a  constable 
for  faihng  to  return  an  execution,  parol  evidence  of  the 
contents  of  the  execution  should  be  admitted  without  pre- 
vious notice  to  the  constable  to  produce  the  original.* 

§1268.  Papers  B'iled,  or  Mentioned  in  Pleadings. — 
Where  defendant  in  ejectment  filed  in  the  case  a  copy  of  a 
title  bond,  it  was  presumed  that  the  original  was  in  his  pos- 
session, and  in  court,  and  on  his  failing  to  produce  it,  the 
court  decided  that  plaintiff  might  read  the  copy  in  evidence 
without  notice  to  produce  the  original.*  But  where  the  bill 
of  particulars  contained  an  item,  "  draft  on  J.  A.,"  this  was 
held  not  sufficient  to  dispense  with  notice  to  produce  such 
draft,  and  permit  defendant  to  offer  secondary  evidence  of 
its  contents,  when  the  plea  did  not  apprise  plaintiff  that  he 
was  charged  Avith  its  possession.'^  But  when,  from  the  nat- 
ure of  the  action,  the  defendant  has  notice  that  he  is  charged 
with  the  possession  of  the  document,  notice  will  be  unnec- 
essary.^ 

iKellar  v.  Savage,  20  Me.,  199.  See  Fii-st  National  Bank  v.  Priest,  50 
ni.,  321,  and  compai-e  with  Weaver  v.  Crocker,  49  lU.,  4G1. 

2 Hardin  v.  Kretsinger,  17  Johns.,  293;  Hammond  v.  Hopping,  13 
Wend.,  505;  Dana  v.  Conant,  30  Vt.,  246. 

3  Hart  V.  Robinet,  5  Mo.,  11. 

*  Griffin  v.  Sheffield,  38  IVIiss.,  359. 

5  Dean  v.  Border,  15  Tex.,  298. 

<-  Howell  V.  Huyck,  2  Abb.  App.  Dec.  (N.  Y.),  423. 


636  PKACTICE   AND   PLEADING. 

§  1269.  Papers  in  Court. —  So  it  was  held,  where  the 
papers  to  be  offered  in  evidence  were  in  court,  that  the 
party  having  them  in  possession  might  be  requu-ed  to  deliver 
them  to  the  opposite  party  on  demand,  without  any  previous 
notice  to  produce,  and  if  not  delivered,  secondary  evidence 
would  be  admissible.^  The  object  of  this  notice  is  not,  as 
has  been  supposed  in  some  instances,  to  enable  the  party 
notified  to  prepare  counter  evidence  with  which  to  rebut 
that  which  is  produced  in  response  to  the  notice,  for  neither 
party  is  required  to  inform  his  adversary  of  the  evidence  by 
which  he  proposes  to  prove  his  case.  I^otice  is  required  for 
the  purpose  of  giving  the  party  notified  sufficient  time  to 
produce  the  paper  if  he  will.^ 

§  1270.  Paper  Must  he  Traced  to  Opposite  Party.— 
After  the  notice  has  been  duly  served  and  the  original  docu- 
ment is  not  forthcoming,  before  secondary  evidence  can  be 
offered  it  becomes  necessary  to  trace  the  original  into  the 
hands  of  the  opposite  party  or  under  his  control ;  but  sHght 
evidence  of  such  possession  or  control  will  generally  be 
sufficient.^^  As  where  the  document  called  for  was  a  written 
contract,  and  there  Avas  evidence  tending  to  prove  that  it 
was  delivered  by  plaintiff's  broker  to  his  clerk,  to  be  sent,  in 
the  regular  course  of  business,  to  defendant's  broker,  and 
the  clerk  could  not  say  positively  that  he  had  sent  it,  but 
testified  that  if  it  came  to  his  hands  he  had  sent  it  to  de- 
fendant's broker,  this  was  held  sufficient  evidence  of  the 
defendant's  possession  of  the  writing  to  warrant  the  intro- 
duction of  secondary  evidence  of  its  contents,  in  the  absence 
of  the  original,  after  due  notice  to  produce.* 

§  1271.  Proof  of  Possession  from  Circumstances. —  So 
Avhere  the  defendant  desired  to  prove  the  contents  of  a 
deed,  shown  to  have  been  in  possession  of  plaintiff's  father 

iBoatright  v.  Porter,  33  Ga.,  130;  Danar.  Boyd,  2  J.  J.  Marsh.,  587;  3 
Tidd's  Prac,  804, 
2  See  posf,  §1286. 

3 1  Wharton  on  Ev.,  §  154,  and  cases  cited  in  note  6. 
4Robb  V.  Starkey,  2  Carr.  &  Kir.,  143. 


NOTICE  TO  PKODFCE  BOOKS  AND  PAPEKS.        G37 

during  his  life-time,  and,  since  the  death  of  the  father,  plaint- 
iff had  always  had  free  access  to  the  papers  left  by  the 
deceased ;  after  a  notice  duly  served  upon  the  plaintiff  to 
produce  the  deed,  and  failure  either  to  produce  the  same  or 
satisfactorily  account  for  its  absence,  secondary  evidence  of 
its  contents  was  admitted.' 

§  1272.  Papers  Under  Control  of  Adversary. —  It  is  not 
absolutely  necessary  to  trace  the  paper  to  the  possession  of 
the  opposite  party  in  order  to  give  full  effect  to  a  notice  to 
produce  the  same.  It  is  sufficient  to  show  such  privity  be- 
tween the  opposite  party  to  the  suit  and  the  one  shown  to 
have  possession  of  the  document.  As  where  the  action  was 
against  the  owner  of  a  vessel,  and  the  writing  is  traced  to 
the  possession  of  the  captain ;  -  or  where  the  person  in  pos- 
session had  a  pecuniary  interest  in,  though  he  was  not  a 
party  to  the  suit;-'  or  where  the  action  was  against  joint 
owners,  and  the  proof  was  that  a  bill  had  been  rendered  to 
one  of  them,  and  last  seen  in  his  possession ;  ■•  in  either  of 
these,  or  similar  cases,  secondary  evidence  would  be  admis- 
sible upon  a  failure  to  produce  the  original  at  the  trial,  after 
notice.  The  rule  wiU  apply  in  the  same  manner  where  the 
paper  called  for  is  in  the  possession  of  the  opposite  attor- 
ney ;  and  he  may  be  required,  in  civil  cases,  to  answer  under 
oath,  whether  he  has  the  paper  in  court.*  And  though  an 
attorney  may  not  be  compelled  to  surrender  a  paper  in- 
trusted to  him  by  his  client  in  confidence,  still  he  may  be 
required  to  testify  as  to  its  existence,  in  order  to  lay  a 
foundation  for  secondary  evidence  by  proving  the  sufficiency 
of  the  notice.''  And  even  where  it  is  in  the  hands  of  a 
third  person,  who  is  outside  the  jurisdiction  of  the  court, 
this  circumstance  alone  will  not  be  sufficient  either  to  ex- 


1  Jackson  v.  Woolsey,  11  Johns.,  44G. 
2Baldney  v.  Ritchie,  1  Stark.,  338., 
3  Norton  v.  Hey  wood,  20  Me.,  359. 
<Eang  V.  Lowry,  20  Barb.,  533. 

5  Morgan  v.  Jones,  24  Ga.,  155. 

6  Brandt  v.  Klein,  17  Johns.,  335;  Morgan  v.  Jones,  24  Ga.,  155. 


638  PRACTICE    AND   PLEADING. 

cuse  notice  or  to  exclude  secondary  evidence  after  notice  to 

produce,  which  is  reasonable  under  all  the  circumstances.^ 

§  1273.  Privity  Must  be  Clearly  Established.— Where 

the  books  or  papers  are  in  the  hands  of  any  one  other  than 
the  opposite  party  himself,  the  privity  between  the  two 
must  be  clearly  made  out  before  a  notice  to  produce  will 
warrant  the  introduction  of  evidence  of  an  inferior  degree. 
As,  where  a  mortgagee  of  a  vessel  is  sued  jointly  with  sev- 
eral of  the  owners,  for  supplies,  notice  to  him  to  produce 
books  and  papers  in  the  possession  of  the  ship's  husband 
will  not  authorize  secondary  evidence  of  their  contents.^ 
So,  in  an  action  of  trespass  for  false  imprisonment,  where 
the  paper  was  shown  to  be  in  the  hands  of  the  person  under 
Avhom  defendant  justified,  it  was  held  that  there  was  not 
such  privity  between  him  and  defendant  that  notice  to  the 
latter  to  produce  the  paper  would  let  in  secondary  evidence 
of  its  contents."  And  where  the  paper  is  in  the  possession 
of  one  who  occupies  the  position  of  a  stakeholder  between 
the  part}^  notified  and  another,  notice  to  produce  will  not 
be  available.* 

§  1274.  Paper  Passed  Out  of  Party's  Possession. —  The 
party  notified  may  give  e\'idence  that  the  document  has 
lawfuU}^  passed  out  of  his  possession,  and  it  will  then  de- 
volve upon  the  court  to  determine  whether  secondary  evi- 
dence is  admissible.'' 

§  1275.  May  Impeach  Copy. —  The  party  notified,  who 
fails  or  refuses  to  produce  the  original,  is  not  thereby  pre- 
cluded from  disputing  the  correctness  of  the  copy."  In  the 
case  cited,  where  this  was  so  held,  Cajsipbell,  C.  J.,  in  ren- 
dering the  opinion  of  the  court,  said:     "The  refusal  of  a 

1  Shepard  v.  Giddings,  22  Conn.,  282. 
2Birbeck  v.  Tucker,  2  Hall  (N.  Y.  City),  121. 
3  Evans  v.  Sweet,  Ey.  &  M.,  83. 
4Pan-y  v.  May,  1  Mood.  &  Rob.,  279. 

5 Harvey  v.  Mitchell,  2  Mood.  &  Rob.,  366;  Best  v.  Osbom,  1  Carr.  & 
P.,  632. 
6  Moulton  V.  Mason,  21  Mich.,  364. 


NOTICE   TO    PEODUCE    BOOKS    AXD   PAPEES.  639 

party,  after  reasonable  notice,  to  produce  a  document  in  his 
possession,  which  the  adverse  party  is  entitled  to  introduce 
in  evidence,  *  *  *  cloes  not  dispense  with  such  proof 
as  is  attainable,  and  does  not  allow  the  tenor  of  the  instru- 
ment to  be  made  out  by  anything  less  than  satisfactory  evi- 
dence of  all  that  is  essential.  There  is  no  rule  which  pre- 
vents the  contradiction  of  such  secondary  evidence,  or  whicli 
will  allow  a  document  to  be  conclusively  proved  by  anj'thing 
that  a  party  may  see  fit  to  affirm  to  be  a  copy.  Dispensing 
with  primary  evidence  only  changes  the  degree  of  evidence 
required,  but  in  no  way  allows  a  case  to  be  made  out  with- 
out proof,  or  prevents  counter  proof."  ^ 

§  1276.  ^^ot  \)j  Iiitroductiou  of  Original. —  But  though 
the  party  served  with  notice  is  at  liberty  to  controvert  the 
secondary  evidence  offered  in  substitution  for  the  original 
writing  which  he  withholds,  he  will  not  be  permitted  to  in- 
troduce the  original  in  furtherance  of  that  object.  Having 
refused  to  furnish  the  document  when  called  for,  he  cannot 
afterwards  offer  it  in  his  own  behalf.- 

§  1277.  Secondary  Evidence,  Even  When  Possession 
Disproved. —  Although  the  party  may  show  that  he  was  not 
in  possession  of  the  paper,  when  served,  as  a  reason  why 
his  failure  to  produce  it  should  not  open  the  way  for  evi- 
dence of  an  inferior  degree,  yet  so  intolerant  are  the  courts, 
of  duplicity,  that  it  has  been  held  where  he  did  not  deny 
possession  of  the  writing  when  served  with  notice,  nor  dis- 
close its  whereabouts  when  known  to  him,  that  secondary 
evidence  would  be  admitted,  though  on  the  trial  he  denied 
possession  of  the  paper.-^ 

§  1278.  Mnst  be  Proved  When  Prodnced.— Where  the 
original  paper  is  produced  in  response  to  the  notice,  it  would 
seem  that  this  was  a  sufficient  admission  by  the  party  pro- 

1  But  it  -will  not  be  necessary  to  call  subscribing  witnesses  to  prove  tlie 
execution  of  an  instrument,  the  contents  of  which  are  proved  by  second- 
ary evidence.     Cook  v.  Transwell,  3  Moore,  R.,  513. 

2  Doon  V.  Donalier,  113  Mass.,  151. 

3  Sinclair  v.  Stevenson,  1  Carr.  &  P.,  583. 


GiO  PKACTICE   AND   PLEADING. 

ducing  it,  of  its  identity  with  the  instrument  called  for ;  but 
should  its  execution  or  genuineness  be  disputed  by  the  party 
from  whose  possession  it  is  thus  taken,  it  should  be  proved 
as  any  other  piece  of  documentary  evidence,^  except  where 
it  is  an  instrument  under  which  the  party  holding  it  claims 
a  beneficial  estate.^  "Were  the  rule  otherwise,  one  who  hap- 
pened to  be  in  possession  of  a  spurious  document,  which,  in 
the  hands  of  another,  might  be  used  to  his  prejudice  in  a 
legal  proceeding,  instead  of  enjoying  any  degree  of  secu- 
rity from  the  possession  of  the  dangerous  instrument,  would 
be  more  seriously  embarrassed  than  if  the  writing  were  in 
the  hands  of  his  adversar}^  Should  he  receive  notice  to 
produce  it,  a  failure  to  comply  would  open  the  way  for  a 
copy  or  parol  evidence  of  its  contents,  which  he  would  have 
no  means  of  successfully  controverting.  Should  he  produce 
the  instrument  and  be  ruled  to  silence  as  to  its  genuineness, 
his  case  would  be  equally  desperate. 

§  1279.  Need  Not  Ibe  OfiFered  When  Produced.—  The  no^ 
tice  to  produce  may  be  merely  a  tentative  proceeding  on 
the  part  of  the  party  giving  it,  and  when  the  paper  is  pro- 
duced its  recitals  may  be  found  so  at  variance  with  what 
was  anticipated  that  he  may  not  desire  to  offer  it  in  evi- 
dence. This  he  cannot  be  forced  to  do,  but  neither  can  he, 
at  his  option,  refuse  to  offer  the  original,  and  substitute 
secondary  evidence  therefor.  As,  when  the  original  pro- 
duced by  defendant  on  notice,  on  inspection  proved  to  be 
at  variance  with  a  copy  in  the  hands  of  plaintiff,  which  he 
offered  in  evidence  instead  of  the  original,  wpon  the  ground 
that  what  purported. to  be  the  original  instrument  was  spu- 
rious, it  was  held  properly  refused,  as  a  paper  was  in  court 
which  was  at  least  prima  facie  the  original.*  In  this  case 
the  court  reserved  its  decision  as  to  how  far  plaintiff  would 
have  been  permitted  to  show  a  variance  of  the  defendant's 
paper  from  the  genuine,  after  it  was  once  introduced ;  but 

1  Rhodes  v.  Selin,  4  Wash.  C.  Ct.,  715. 

2 Pearce  v.  Hooper,  3 Taunt.,  60;  Burnetts.  Lynch,  5  Barn.  &  Cres.,  38. 

sStitt  V.  Huidekopers,  17  WaU.,  384. 


NOTICE  TO  PRODUCE  BOOKS  AND  PAPERS.        611 

it  would  certainly  seem  that  if  he  was  compelled  to  call 
upon  the  defendant  to  furnish  the  instrument,  without  a 
previous  opportunity  to  examine  it,  he  should  not  be  con- 
clusively bound  by  any  paper  the  defendant  might  be  pleased 
to  produce.  To  decline  offering  the  paper  would  be  to 
abandon  the  point  depending  for  proof  upon  such  evidence. 
To  hold  him  precluded  from  disputing  the  genuineness  of 
the  document  when  offered  would  be  virtually  to  place  tlio 
party  calling  for  the  writing  entirely  in  tlie  power  of  the 
party  producing  it. 

§  1^280.  Inference  Drawn  from  Failure  to  Produce.— 
We  have  seen  that  the  failure  to  produce  an  original  instru- 
ment on  the  trial  does  not  dispense  with  proof,  but  merely 
admits  evidence  of  an  inferior  degree.^  However,  when  a 
paper  having  an  important  bearing  upon  the  matter  in  issue 
is  traced  to  the  possession  of  one  of  the  parties,  who,  when 
challenged  by  his  adversary  to  produce  it,  declines  to  do  so, 
the  jury  are  at  liberty  to  infer  from  his  refusal  that  the  instru- 
ment would  be  damaging  to  his  case.'-  At  least,  when  books 
and  papers  are  satisfactorily  shown  to  be  in  the  possession 
of  a  party  to  an  action,  which  he  fails  or  refuses,  upon  due 
notice  from  the  opposite  party,  to  produce  at  the  trial,  and 
the  secondary  evidence  offered  in  lieu  thereof  is  vague  or 
uncertain,  every  presumption  sliould  be  against  the  party 
who  might  have  rendered  it  clear  by  producing  the  best 
e\'idence.^  As  in  the  case  of  Eastman  v.  Amoskeag,  etc., 
Co.,*  the  paper  called  for  by  the  notice  was  a  receipt., 
and  not  being  produced,  a  copy  was  offered  in  evidence, 
which  was  sworn  to  by  a  witness,  who  did  not  pretend  to 
have  compared  it  with  the  original,  nor  could  he  recollect 

1  Ante,  §  1275. 

2KeUar  v.  Savage,  20  Me.,  199;  Clifton  v.  United  States,  4  How.,  242. 

3  Eastman  v.  Amoskeag  Manuf.  Co.,  44  N.  H.,  143;  Foye  v.  Leighton, 
24  id.,  29;  Cross  v.  Bell,  34  N.  H.,  82;  Bassett  v.  Salisbury  Co.,  28  id., 
438;  Life  &  Fire  Ins.  Co.  v.  Mechanics'  Ins.  Co.,  7  Wend.,  31;  Bright  v. 
Young,  15  Ala.,  112. 

^  Supra. 
41 


G42  PRACTICE   AND    PLEADING. 

the  contents  of  the  original,  without  refreshing  his  memory 
from  the  copy,  yet  aided  by  the  prcsmnption  stated  above, 
this  was  held  competent  to  go  to  the  jury  to  prove  the  con- 
tents of  the  instrument  withheld, 

§  1281.  Notice  to  Produce  Notice  —  Unnecessary. — The 
weight  of  authority  in  the  United  States  is  decidedly  in 
favor  of  the  doctrine  that  the  contents  of  a  notice,  whether 
it  be  a  notice  to  produce  or  for  any  other  purpose,  may  be 
proved  by  secondary  evidence,  without  a  notice  to  produce 
the  original.  As,  for  example,  a  notice  of  demand  and  non- 
payment, or  non-acceptance  of  commercial  paper.*.  The 
ground  for  these  decisions  is  that  to  hold  otherwise  would 
necessitate,  for  every  notice  sent,  a  new  one  to  show  the 
contents  of  the  former,  and  so  on  ad  infinitum?  It  has 
also  been  held,  in  strict  harmony  with  the  other  cases  cited, 
that  the  contents  of  a  notice  by  a  surety  to  the  holder  of 
commercial  paj^er,  to  sue  the  principal  maker,  may  be  proven 
by  parol,  without  a  notice  to  the  holder  to  produce  the  orig- 
inal notice  served  upon  him.^  But  in  a  more  recent  case, 
the  court  decided  that  in  order  to  prove  the  contents  of  a 
written  notice  to  sue,  b}''  the  indorser  to  the  holder,  there 
should  be  a  notice  to  produce.* 

^  12S2.  Contents  of  Notice. —  The  notice  should  contain 
a  plain  and  concise  statement  of  what  is  called  for.  The 
case  should  be  properly  entitled;  but  where  the  suit  is 
brought  in  the  name  of  one  party  to  the  use  of  anotlier, 
and  the  notice  is  given  by  the  attorney  of  one  party  and 
served  upon  the  attorney  of  the  other,  describing  the  suit 
as  between  the  nominal  plaintiff  and  the  defendant,  this 
will  be  regarded  as  sufficiently  certain.'^    If  the  notice  is 

'Central  Bank  r.  Allen,  16  Me.,  41;  Eagle  Bank  v.  Chapin,  3  Pick., 
180;  Leavitt  v.  Simes,  3  N.  H.,  14. 

2  Morrow  v.  Commonwealth,  48  Pa.  St.,  305;  Eisenbart  v.  Slaymaker, 
14  S.  &E.,  153. 

3  Christy  v.  Home,  24  Mo.,  242. 

*Latlu-op  V.  Mitchell,  47  Ga.,  610.    See,  also,  3  Tidd's  Pr.,  805;  cases 
cited,  note  c. 
sSimington  v.  Kent,  8  Ala.,  691. 


NOTICE  TO  PKODUCE  BOOKS  AND  PAPERS.        643 

sufficiently  certain  to  avoid  misleading  the  opposite  party, 
it  will  be  held  good  though  it  be  inartificially  drawn.^  As 
where  the  descriptive  part  of  the  notice  was  in  these  words : 
"An  agreement  bearing  date  the  12th  of  December,  1855, 
made  between  the  plaintiff  and  the  defendant,  whereby  the 
defendant  agreed  to  let,  and  the  plaintiff  to  take,  the  house 
and  premises  No.  2,"  etc.  (describing  them),  it  was  held 
sufficient.^  So  where  the  papers  designated  were — ''AH 
and  every  letters  written  by  the  said  plaintiff  to  the  said 
defendant,  relating  to  the  matters  in  dispute  in  this  action," 
the  description  was  held  sufficiently  certain,  because  it  men- 
tioned the  writer  and  the  person  to  whom  written.'  And 
even  where  a  particular  paper  was  desired,  which  was 
among  certain  accounts,  and  the  notice  called  for  "  all  ac- 
counts relating  to  the  matters  in  question  in  this  cause,"  it 
was  held  sufficient,  because  enough  was  expressed,  under 
the  peculiar  circumstances  of  the  case,  to  leave  no  doubt 
that  the  particular  instrument  would  be  called  for.* 

§1283.  Should  Not  l)e  Too  General.— But  the  notice 
should  not  be  so  general  as  to  leave  any  room  for  a  reason- 
able doubt  as  to  what  books  or  papers  are  required ;  or  to 
necessitate  the  production  of  an  unreasonable  number  of 
documents  in  the  possession  of  the  party  notified;  or  to 
place  his  private  correspondence  at  the  disposal  of  the  party 
giving  the  notice,  so  as  to  enable  him  to  inspect  that  portion 
which  is  utterly  irrelevant,  in  order  to  determine  what  will 
answer  his  purpose.  ^  It  was  accordingly  held  that  a  notice 
calling  for  "  all  papers  and  documents  touching  or  concern- 
ing the  bill  of  exchange  mentioned  in  the  declaration,  and 
the  debt  sought  to  be  recovered,"  was  too  general,* 

§  1284.  Generally  in  Writing. —  In  general,  the  notice  is 
required  to  be  in  writing ;  but  even  where  this  rule  was  ex- 

1  Justice  V.  Elstob,  1  Fost.  &  F.,  256. 

2  Graham  v.  Oldis,  1  Fost.  &  F.,  263. 

3  Jacob  V.  Lee,  2  Mood.  &  Rob.,  33. 

♦Rogers  v.  Custance,  2  Mood.  &  Rob.,  179;  Morris  v,  Hauser,  id.,  392. 
5  France  v.  Lucy,  Ry,  &  M.,  341. 


64:4  PKACTICE   AND   PLEADINO. 

pressly  recognized  as  in  force,  it  was  held  not  to  apply 
when  the  notice  was  given  in  the  presence  and  hearing  of 
the  court.^ 

§  1285.  Renewal  Unnecessary  in  Case  of  Continu- 
ance.—  The  notice  being  to  produce  documentary  evidence 
at  the  trial,  it  will  hold  good  though  the  case  should  not 
be  called  at  the  next  succeeding  term,  or  should  be  contin- 
ued or  passed  until  the  following  year.^  So  where  the  party 
was  notified  to  produce  an  instrument  to  be  offered  in  evi- 
dence at  the  trial  before  a  justice  of  the  peace,  and  faihng 
to  produce  it,  secondary  evidence  was  offered,  it  was  held 
that  the  same  notice  would  be  available  for  the  trial  on  ap- 
peal, and  if  the  instrument  was  not  produced  there,  evidence 
of  an  inferior  degree  would  be  admitted.^ 

§  1286.  Time  of  Notice. —  A  reasonable  time  must  elapse 
between  the  service  of  the  notice  and  the  trial,  to  allow  the 
party  to  procure  the  writing.  What  is  reasonable  time 
must  necessarily  depend  upon  the  circumstances  of  each 
case.  As  where  the  service  was  at  noon  of  the  day  preced- 
ing the  trial,  it  was  regarded  as  reasonable  in  point  of  time, 
and  where  the  situation  of  the  party  was  such  as  to  have 
enabled  him  to  attend  the  trial  with  the  document,  without 
serious  inconvenience.^  And  when  the  notice  was  to  pro- 
duce the  book  of  accounts  of  the  party,  in  consideration  of 
the  fact  that  his  counting-house  was  very  near,  it  was  held 
sufficient  if  served  on  the  evening  preceding  the  trial."'  So 
where  it  was  proved  that  at  half -past  six  on  the  evening  pre- 
ceding the  trial,  plaintiff's  attorney  caused  notice  to  produce 
a  letter  previously  written  to  defendant,  to  be  served  on 
defendant  at  his  residence  by  leaving  it  with  his  wife,  and 
that  he  caused  a  similar  notice  to  be  served  at  the  office  of 
defendant's  attorney  a  few  minutes  later  in  the  evening, 

1  Kerr  v.  McGuii-e,  28  N.  Y.,  446. 

2Reab  v.  Moor,  19  Johns.,  337, 

*<  Reab  v.  Moor,  supra. 

^Regina  v.  Hankins,  2  Carr.  &  Kir.,  822. 

sShreve  v.  Dulany,  1  Cranch  C.  Ct.,  499. 


NOTICE  TO  PEODUCE  BOOKS  AND  PAPERS.        645 

this  was  held  not  too  late.^  So,  also,  a  notice  given  to  the 
attorney  several  days  before  the  trial,  was  held  served 
within  a  reasonable  time,  although  the  party  himself  re- 
sided outside  of  the  state.^  It  was  also  held,  where  the 
notice  was  served  on  the  day  preceding  the  trial,  and  it  ap- 
peared that  the  paper  was  in  the  hands  of  a  party  residing 
at  a  distance  of  eighty  miles  from  the  place  of  trial,  that 
the  com-t  would  not  take  judicial  notice  of  the  fact  that  he 
could  not  have  procured  it,  and  in  the  absence  of  any  show- 
ing of  his  inability  to  do  so,  secondary  evidence  of  its  con- 
tents was  admissible.* 

§  1287.  Served  at  Trial  Too  Late.— The  notice  will  be 
regarded  as  too  late  when  served  at  the  time  of  trial,  except 
where  it  can  be  shown  that  the  books  or  papers  are  in  court, 
or  are  of  easy  access/  So,  where  it  was  to  produce  a  letter 
in  reference  to  the  note  upon  which  suit  was  brought,  and 
the  service  was  at  a  quarter  before  9  o'clock  on  the  evening 
before  trial,  it  was  held  too  late.^  So,  also,  where  the  no- 
tice was  served  at  half-past  8  on  one  evening,  and  the  trial 
was  set  for  the  hour  of  10  on  the  following  morning,  it  was 
held  not  served  in  time  to  require  the  production  of  the 
paper,  nor  to  warrant  secondary  evidence  when  the  original 
was  not  produced.^ 

§  1288.  Pa,rty  Not  Required  to  Incur  Expense. — 
"Where  the  notice  was  given  on  Saturday,  to  produce  cer- 
tain deeds,  plaintiff's  attorney  went  to  town  and  procured 
them,  and  on  the  evening  of  the  following  Monday  was 
served  with  another  notice  to  produce  an  additional  deed, 
which  he  said  would  be  there  in  time  for  the  trial,  if  de- 
fendant would  bear  the  expense  of  sending  for  it.  This, 
however,  defendant  did  not  do,  but  at  the  trial,  on  the  fol- 

iMeyrick  v.  Woods,  Carr,  &  ]\Iarsh.,  452. 

2  Jefford  V.  Ringgold,  6  Ala.,  544. 

3Cady  V.  Hough,  20  111.,  43. 

<  Atwell  V.  MiUer,  6  Md.,  10;  Barton  v.  Kane,  17  Wis.,  37. 

5 Holt  V.  Miers,  9  Carr.  &  P.,  191. 

6  Lawrence  v.  Clark,  14  Mees.  &  Wels.,  250. 


64:6  PBACTioE  Jlsd  pleading. 

lowing  Thursday,  offered  parol  testimony  of  the  contents  of 
the  deed,  which  the  court  refused  to  admit,  and  it  was  held, 
on  appeal,  that  such  refusal  was  proper,  as  it  was  unreason- 
able for  plaintiff  to  repeat  his  journey  to  town  at  his  own 
expense.^ 

§  1289.  Original  Not  in  Existence. —  Objections  on  ac- 
count of  lateness  of  service  will  not  be  sustained  when  the 
party  or  his  attorney  admits  that  the  original  is  not  in  ex- 
istence. In  such  case  secondary  evidence  may  be  given 
without  notice.- 

§  1290.  Opposite  Attorney  in  Possession  of  Papers. — 
The  notice  to  produce  may  be  served  upon  the  attorney  of 
the  party  in  possession  of  the  instrument  as  effectively  as  if 
served  upon  the  party  himself.^  And  service  upon  the 
attorney  or  agent  is  as  good  in  actions  of  a  penal  nature  as 
in  any  other.*  A  subsequent  change  of  attorneys  will  not 
invalidate  the  notice,  provided  it  was  served  upon  the 
attorney  for  the  time  being,^ 

§1291.  One  of  Several  Joint  Parties. —  Either  one  of 
two  or  more  joint  plaintiffs  or  defendants  may  be  served 
with  notice  of  this  kind  with  like  effect  as  though  it  were 
served  upon  each  of  them,  provided  they  have  possession  or 
control  of  the  desired  document,  and  an  admission  by  either 
that  the  instrument  is  destroyed  wiU  dispense  with  notice 
entirely,  and  warrant  proof  of  the  contents  of  the  instru- 
ment destroyed  by  the  next  best  evidence  at  the  command 
of  the  party." 

§  1292.  Personal  Service  Not  Indispensable. —  It  is  not 
essential  in  all  cases  to  show  personal  service  of  the  notice 
to  produce.  It  has  been  held  well  served  when  left  at  the 
usual  place  of  abode  of  the  party  intended  to  be  affected 

1  Doe  V.  Spitty,  3  Barn.  &  Adol.,  182. 

2 Foster  v.  Pointer,  9  Carr.  &  P.,  718. 

3Simington  v.  Kent,  8  Ala.,  691 ;  Jefford  v.  Einggold,  6  Ala.,  544. 

4  Gates  V.  Winter,  3  T.  R.,  806. 

5 Doe  V.  Martin,  1  M.  &  Rob.,  243. 

6Marlow  v.  Marlow,  77  lU.,  638;  King  v.  Lowry,  20  Barb.,  533. 


NOTICE  TO  PEODUCE  BOOKS  AND  PAPEKS.        647 

thereby,  with  some  person  of  competent  age,  or  where  it 
was  left  at  the  oflSce  of  the  attorney.^  But  in  case  of  serv- 
ice otherwise  than  personal,  when,  through  no  fault  of  the 
party  required  to  produce,  the  notice  fails  to  reach  him  in 
time,  reasonable  indulgence  should  be  extended  to  him  to 
enable  him  to  produce  the  original,  in  order  to  correct  any 
errors  or  false  statements  by  which  he  might  be  prejudiced, 
in  the  copy,  or  the  parol  testimony. 

iMeyrick  v.  Woods,  Can-.  &  Marsh.,  452. 


648  PEACnOE   AKD   PLEADING. 


VII.  Sekyice. 

§  1293.  Importance  of  Proper  Service. 

1294.  Division  of  Subject. 

1295.  By  Whom  Served. 

1296.  Not  by  Party  ia  Interest. 

1297.  By  Unofficial  Person. 

1298.  When  the  Officer  a  Party. 

1299.  Notice  of  Motions,  etc. 

1300.  To  Take  Depositions. 

1301.  Upon  Whom  Served. 

1303.  Original  Process  Served  on  Agent. 

1303.  Service  Upon  Corporations. 

1304.  Statute  for  Benefit  of  Residents. 

1305.  Eeasonableness  of  Rule. 

1306.  Service  Upon  Foreign  Corporations  —  Federal  Judiciary  Act. 

1307.  United  States  Circuit  Courts  Have  Limited  Jm'isdiction. 

1308.  How  Jurisdiction  Obtained  in  Federal  Courts. 

1309.  How  Corporations  Served. 

1310.  Service  Upon  Ticket  Agent. 

1311.  Where  the  Statute  Directory  and  Permissive. 

1312.  Service  on  Municipal  Corporation. 

1313.  Upon  City  Clerk,  Insufficient. 
•    1314.  Service  Upon  Partners. 

1315.  Principal  Defendant, 

1316.  Service  Upon  Minors. 

1317.  Upon  Convicts. 

1318.  Service  Upon  Party  by  Wrong  Name. 

1319.  Variance  Between  Name  in  Process  and  Other  Papers. 

1320.  Several  Defendants  in  Different  Counties. 

1321.  Service  Upon  Attorney. 

1322.  Same  in  Suit  Before  Justice  of  Peace. 

1323.  Should  Not  be  Upon  Attorney  Whose  Connection  with  Case 

Has  Ceased. 

1324.  "Due  "Notice. 

1325.  Application  for  Injunction. 

1326.  Construction  of  "  Reasonable  "  Notica. 

1327.  Time  Fixed  by  Statute. 

1328.  Admission  of  Notice. 

1329.  Time  of  Notice  of  Motion  for  New  Trial 

1330.  Time  Computed  from  Date  of  Service. 

1331.  How  Time  Computed. 

1332.  Summons  Must  be  for  Full  Time. 

1333.  Reference  to  Other  Parts  of  Chapter. 


SEKVICK.  64:9 

§  1334,  Manner  and  Mode  of  Service. 

1335.  Personal  Service. 

1336.  Leaving  it  at  Place  of  Abode,  Not  Sufficient. 

1337.  Personal  Upon  Attorney. 

1338.  Strict  Eequirenient  as  to  Sunxmons. 

1339.  Different  Modes  of  Personal  Service. 

1340.  By  Reading  Original,  or  Delivering  Writing. 

1341.  Written,  Slust  be  by  Delivery. 

1342.  Rule  Deduced  from  Foregoing. 

1343.  Service  at  Place  of  Abode. 

1344.  General  Remai'ks. 

1345.  Leaving  at  Residence  or  Place  of  Business  Only  Prescribed  by 

Statute. 

1346.  In  What  Cases  Officer  May  Elect  Mode. 

1347.  Leaving  at  Place  of  Residence. 

1348.  Family  of  Which  Party  is  a  Member. 

1349.  Must  be  at  Present  Place  of  Abode. 

1350.  Necessity  for  Strict  Construction. 

1351.  Actions  Against  Property. 

1353.  Personal  Service  in  Foreign  State. 

1353.  Proof  of  Foreign  Service. 

1354.  Acknowledgment  of  Service. 

1355.  Service  by  Mail. 

1356.  Chancery  Proceedings  in  United  States  Court. 

1357.  On  Board  Foreign  Vessel. 

1358.  Non-resident  Temporarily  Within  Jurisdiction  —  WTien  May  be 

Effectually  Served,  and  When  Exempt. 

1359.  Sunday  or  Legal  Holiday. 

1360.  Reference  to  Other  Chapters. 

§  1293.  Importance  of  Proper  Service. —  l^o  step  taken 
in  any  proceeding  which  has  for  its  object  the  giving  of 
notice  of  anything  done  or  to  be  done  in  the  past,  present 
or  future,  in  the  course  of  practice  in  the  courts,  is  of 
greater,  or  perhaps  equal,  importance  to  that  of  serving  no- 
tice upon  the  party  to  be  affected  by  the  proceeding.  The 
importance  of  careful  attention  to  this  matter  arises  from 
the  fact  that  it  is  an  act  for  the  performance  of  which  nu- 
merous way  s  are  provided,  and  consequently  the  possibiUties 
of  error  are  multiplied.  Another  reason  for  extraordinary 
care  in  serving  notice  of  any  proceeding  by  which  the  in- 
terests of  the  party  served  may  be  affected,  is  that  mistakes 
or  omissions  of  duty  in  this  respect  are  more  likely  to  prove 


650  PKACTICE   AKD   PLEADING. 

fatal  to  the  validity  of  the  proceeding.  There  can  be  no 
amendment  of  the  service  after  any  portion  of  the  time  has 
elapsed  for  which  the  party  should  have  had  notice.  When 
the  method  of  obtaining  ser\'ice  is  in  its  natm'e  constructive, 
as  where  the  notice  may  be  served  by  leaving  it  at  the  place 
of  business  or  residence  of  the  party  interested,  the  rules 
governing  the  service  are  still  more  strictly  enforced,  and 
fatal  mistakes  are  more  likely  to  occur.^ 

§  1 2  94.  Division  of  Subject. —  In  considering  this  branch 
of  our  subject,  it  may  be  more  conveniently  treated,  and 
the  substance  of  the  authorities  cited,  by  way  of  illustration, 
more  perspicuously  arranged,  by  considering  in  regular 
order:  1.  By  loliom  the  notice  sJiould  he  served.  2.  U^on 
whom  served.  3.  The  time  of  service.  4.  The  mamier  and 
m^ode  of  service. 

§  1295.  By  Whom  Served. —  The  general  practice,  when 
formal  notice  is  required  of  any  impending  proceeding  in 
court,  is  to  have  the  notice  served  by  the  executive  oflBcer 
of  the  court ;  but  this  is  not  always  essential.  Matters  of 
this  kind  being  to  a  considerable  extent  within  the  control 
of  the  different  courts,  when  they  are  not  regulated  by  stat- 
ute, renders  it  impossible  to  lay  down  a  rule  apphcable  to 
all  forms  of  notice,  and  which  would  be  acceptable  in  all 
the  different  tribunals  where  such  notices  are  required.  But 
where  the  notice  to  be  served  partakes  of  the  nature  of  the 
original  process ;  or  when  the  proceeding  to  be  noticed  is 
intended  to  result  in  a  judgment  or  decree  upon  which  ^«^ 
process  may  issue,  it  is  the  safer  and  better  practice  to  have 
the  notice  served  by  an  officer.  When  the  original  ]3rocess 
is  directed  to  a  marshal,  sheriff  or  constable,  it  should  be 
served  by  such  officer  or  his  deputies,  unless  there  be  some 
statutory  provision,  by  which  some  one  else  may  be  substi- 
tuted.2 

§  1296.  Not  by  Party  in  Interest. —  We  know  of  no 
exceptions  to  the  rule  that  original  process  can  never  be 

1  Infra. 

2Schwabacker  v.  ReiUy,  3  DiU.,  137, 


SERVICE.  G51 

served  by  a  party  to  the  suit  upon  his  adversary ;  ^  though 
the  rule  is  not  generally  so  strict  with  reference  to  some 
other  notices,  which  are  regarded  as  less  important. 

§  1297.  By  Unofficial  Person. —  Where  an  order  of  the 
board  of  health  of  a  village,  for  the  discontinuance  of  an 
offensive  employment,  was  required  to  be  brought  to  the 
knowledge  of  the  person  subject  to  such  order  by  a  formal 
notice,  it  was  held  sufficiently  served,  though  not  by  an 
officer;  but  was  only  held  so  because  its  receipt  by  the  per- 
son affected  was  proved.-  So,  also,  has  it  been  held,  under 
a  peculiar  statute,  that  original  process  might  be  served  by 
an  unofficial  person,  instead  of  a  sheriff,  and  such  service 
could  be  authenticated  by  the  affidavit  of  the  person  by 
whom  it  was  served,  though  not  by  his  mere  certificate.^ 
Service  of  notice  of  a  mechanic's  lien  may  be  made  by  a 
constable  or  any  competent  witness.'* 

§  1298.  When  the  Officer  a  Party. —  Service  of  original 
process  is  not  onlv  permitted  to  be  made,  in  some  instances, 
by  those  who  are  not  clothed  v/ith  any  official  character 
whatever,  but  w^hen  the  only  available  officer  is  a  party  to 
the  proceeding  to  be  noticed,  it  becomes  absolutely  neces- 
sary that  some  one  else  should  be  selected.  When  the  sub- 
stitute for  a  sheriff  is  selected  by  the  court,  he  is  generally 
styled  an  elisor,  and  is  clothed  with  all  necessary  authority 
to  discharge  his  duty  in  the  premises. 

§  1299.  Notice  of  Motions,  etc. —  Notices  of  interlocu- 
tory motions,  notice  of  trial,  notice  to  take  depositions,  and 
the  like,  it  is  generally  understood,  may  be  served  by  an 
unofficial  person  with  the  same  effect  as  by  an  officer  of  the 
court,  provided  sufficient  care  be  taken  to  properly  authenti- 
cate such  service. 

§  1300.  To  Take  Depositions. —  Where  one  of  the  par- 
ties to  a  suit  desires  to  take  depositions,  to  be  used  at  the 

iSnydacker  v.  Brosse,  51  HI.,  357. 
2  Winthrop  v.  Farrar,  11  Allen,  398. 
8  Coffee  V.  Gates,  28  Ark.,  43. 
4  Hassett  v.  Rust,  64  Mo.,  335. 


652  PKACTICE   AND   PLEADING. 

trial,  the  service  of  notice  upon  the  opposite  party  is  occa- 
sionally questioned,  because  it  is  claimed  to  have  been  served 
by  an  improper  person.  In  the  state  of  Vermont  it  was 
held  that  such  a  notice  might  be  served  by  the  sheriff  of  the 
county  in  which  the  suit  was  pending,  upon  the  opposite 
part}^  in  another  county.'  And  under  the  provisions  of  a 
statute  of  the  same  state,  it  was  held  that  notice  of  the 
taking  of  depositions  to  be  used  in  a  trial  before  a  justice  of 
the  peace  should  be  given  personally  and  orally  hy  the  jus- 
tice himself.^  It  has  also  been  held  elsewhere,  when  depo- 
sitions were  taken  under  a  foreign  commission,  and  the 
interrogatories  were  not  filed  in  time  to  give  the  opposite 
party  an  opportunity  to  file  cross-interrogatories,  thereby 
rendering  notice  essential,  that  such  notice  would  properly 
come  from  the  commissioner  before  whom  the  depositions 
were  taken,  and  not  from  the  attorney.^ 

§  1301.  Upon  Whom  Served. —  In  determining  upon 
ivhom  service  should  be  made,  the  courts  have  had  to  meet 
questions  somewhat  difficult  of  solution.  Considerations  of 
the  character  of  parties  to  judicial  proceedings,  the  relations 
subsisting  between  those  interested,  and  the  manner  in 
which  they  are  represented  in  the  contests,  aU  tend  to 
modif}^,  in  a  greater  or  less  degree,  the  simple  rule  that 
"  notice  should  be  served  upon  the  party  adversely  inter- 
ested in  the  proceeding."  In  matters  of  practice,  it  is  often 
not  only  extremely  inconvenient  to  serve  the  party,  but  it  is 
sometimes  impossible;  and,  except  with  respect  to  the 
original  process,  is  more  effective,  and  best  subserves  the 
interests  of  all  parties,  by  being  served  upon  a  representa,tive. 
And  even  a  summons,  citation,  or  original  notice  may  be, 
under  some  circumstances,  served  upon  an  agent,  with  a 
stronger  probability  of  conveying  information  to  the  prin- 
cipal, than  would  arise  from  constructive  service  upon  the 
principal  himself,  by  means  of  publication  in  a  newspaper, 

1  Parker  v.  Header,  33  Vt.,  300. 

2  See  Redfield,  J.,  in  Fitts  v.  Whitney,  32  Vt.,  5£9. 

3  Parker  v.  Sedwick,  5  Md.,  281. 


SERVICE.  653 

or  posting  -written  or  printed  notices  upon  court-house  doors, 
at  school-houses  and  cross-roads. 

§  1302.  Original  Process  Served  on  Agent. —  Original 
process  ma}^,  under  certain  circumstances,  be  legally  served 
upon  the  agent  of  the  party  to  be  affected  by  the  proceed- 
ing, as  where  such  party  is  a  corporation,  foreign  to  the 
jurisdiction  of  the  court  from  which  the  summons  issues, 
but  doing  business,  and  having  its  interests  represented  by  an 
agent  or  manager  within  such  jurisdiction.^  However,  the 
power  of  obtaining  jurisdiction  by  this  kind  of  service  arises 
from  the  non-residence  of  the  corporation  notified,  rather 
than  from  its  corporate  character;  for  service  upon  the 
official  representative  of  a  domestic  corporation,  though 
equally  valid,  is  not  regarded  as  service  upon  an  agent,  but 
upon  the  corporation  itself.  It  is  a  resident  of  the  state  or 
territory  where  it  was  incorporated,  in  the  sense  that  it  has 
all  the  local  habitation  it  can  have,  there  and  nowhere 
else.  It  can  only  be  reached  personally,  by  serving  those 
who  exercise  its  powers,  and  perform  its  functions;  and 
when  its  officers  and  directors  act  beyond  the  limits  of  the 
state  by  whose  authority  they  were  created  a  body  corpo- 
rate, they  become  merely  agents  of  the  corporation.-  "When 
they  are  exercising  their  official  authority  in  the  state  where 
they  were  incorporated,  they  are,  for  the  purpose  of  service 
of  process,  the  corporation  itself;  therefore,  service  upon 
them  is  personal  service.' 

§  1303.  Service  Vpon  Corporations. —  In  most,  if  not 
aU,  the  states,  jurisdiction  of  foreign  corporations  doing 
business  within  their  limits  is  secured  b}^  statutory  provis- 
ions, requiring  as  a  condition  precedent  to  their  being  per-' 
mitted  to  transact  such  business  in  the  state,  that  they 
designate  some  person  as  authorized  to  represent  them,  and 
upon  whom  service  may  be  had  of  all  process  issuing  against 

1  Lafayette  Insvirance  Co.  v.  French,  18  How.,  404;  Weymouth  v. 
Washington  G.  &  A.  K.  R.  Co.,  1  MacArthur,  19. 
-Bank  of  Augusta  tJ.  Earle,  13  Pet.,  588. 
3  Bank  of  Augusta  v.  Earle,  supra. 


654  rRAcncE  a^sd  pleading. 

the  corporation.^  It  is  siiflBcient,  however,  to  render  service 
upon  such  agent  binding,  if  the  statute  siraph"  declares  that 
service  may  be  had  upon  resident  agents  of  foreign  corpora- 
tions doing  business  in  the  state.^  By  engaging  in  business 
within  the  limits  of  a  state,  where  such  a  statute  is  in  force, 
the  corporation  will  be  regarded  as  thereby  voluntarih'^  sub- 
mitting to  the  territorial  jurisdiction  of  its  courts,  subject 
only  to  the  right  of  removal  to  a  federal  court.^ 

§  1304:.  statute  for  Benefit  of  Residents. —  But  juris- 
diction cannot  in  everv  instance  be  obtained  in  this  manner, 
even  under  such  statutory  provisions.^  The  statute  is  in- 
tended for  the  benefit  and  protection  of  the  citizens  of  the 
state  where  it  is  enacted.  Therefore,  in  a  case  where  the 
cause  of  action  arose  out  of  the  state  where  the  suit  was 
pending,  and  between  citizens  of  another  state  and  a  for- 
eign corporation,  and  process  was  served  by  leaving  a  copy 
of  the  writ  with  its  "  agent  and  attorney  "  within  the  state, 
it  was  held  that  the  court  thereby  obtained  no  jurisdiction 
of  the  defendant.' 

§  1305.  Beasonableness  of  Rule. —  There  can  be  no 
doubt  of  the  justice  of  the  very  temperate  pro\'isions  inter- 
posed by  the  legislative  bodies  of  the  states  for  the  protec- 
tion of  their  own  citizens.  To  require  a  non-resident  corpo- 
ration to  submit  to  the  local  jurisdiction  of  the  courts, 
where  it  undertakes  to  transact  business,  is  simjoly  to  place 
it  as  near  as  may  be  on  an  equal  footing  with  domestic  cor- 
porations and  resident  individuals  who  may  be  its  rivals  for 
public  patronage.  It  would  be  eminently  unjust  to  compel 
the  states  to  grant  to  non-residents  the  same  privileges,  im- 
munities and  rights  as  are  enjoyed  by  their  own  citizens,  and 
then  deprive  the  latter  of  the  same  power  of  enforcing  con- 
tracts against  the  foreigners  as  they  might  exercise  against 

1  Gantt's  Dig.,  §  3561,  as  amended ;  Laws  of  Ark.  (1875),  p.  190. 

2  Lafayette  Insurance  Co.  v.  French,  supra,  §  1303. 

3  Ihid. 

*  See  Gen.  St.,  Vt.,  ch.  87,  §5et  seq. 

5  Sawyer  v.  North  American  Life  Ins.  Co.,  46  Vt.,  697. 


SEEVICE.  655 

resident  persons  and  corporate  bodies.  But  by  the  opera- 
tion of  the  act  of  congress  regulating  the  practice  in  federal 
courts,  known  as  the  Judiciary  Act,  this  unjust  discrimina- 
tion is  effected.^ 

§  1306.  Sei'Tice  Upon  Foreign  Corporations  —  Federal 
Judiciary  Act. —  This  act  provides  that  no  civil  suit  shall  be 
brought  in  the  circuit  court  of  the  United  States,  against 
any  person,  in  any  other  district  than  that  whereof  he  is 
an  inhabitant,  or  in  which  he  shall  be  found  at  the  time  of 
serving  the  process.'  The  effect  of  this  provision  is  to  de- 
prive the  circuit  courts  of  all  original  jurisdiction  over  cor- 
porations foreign  to  the  state  composing,  in  whole  or  in 
part,  the  district  where  the  cause  of  action  arises.  The 
corporation  having  no  legal  existence  beyond  the  boundaries 
of  the  sovereignty  by  which  it  was  created,  cannot  migrate. 
Consequently,  it  could  neither  be  an  "  inhabitant "  of  the 
district,  nor  could  it  be  found  in  such  district  at  the  time  of 
serving  process,  though  its  officers  might  be  passing  through 
or  fomid  within  such  district ;  for  the  officers  are  not  the 
corporation.^ 

§  1307.  United  States  Circuit  Courts  Have  Limited 
Jurisdiction. —  This  question  is  ably  discussed,  and  the  cases 
thoroughly  reviewed  by  Judge  Dillon,  in  a  recent  case 
decided  in  the  circuit  court  for  the  eastern  district  of  Arkan- 
sas.* There  the  action  was  by  a  citizen  of  Arkansas  upon  a 
fire  policy  issued  by  defendant,  a  corporation  created  under 
the  laws  of  the  state  of  Illinois,  upon  plaintiff's  property 

1  Originally  enacted  in  1789,  and  re-enacted  without  change  by  the  act 
of  March  3,  1875,  §  1. 

2  Supra. 

3  Bank  of  Augusta  v.  Earle,  supra;  Pomeroy  v.  N.  Y.  &  N.  H.  R.  R. 
Co.,  4  Blatchf.,  120;  Day  v.  Newark  India  Rubber  Co.,  1  Blatclif.,  628; 
Southern  &  Atlantic  Tel.  Co.  v.  New  Orleans,  etc.,  R.  R.  Co.,  2  Cent.  L. 
J.,  88. 

*  Stillwell  V.  Empire  Fire  Insurance  Co.,  4  Cent.  L.  J,,  463.  See,  also, 
Cunninghams.  Southern  Ex.  Co.,  67  N.  C,  425.  But  see  "Williams  v. 
Empire  Ins.  Co. ,  6  Reporter,  673 ;  Ex  parte  SchoUenberger,  6  Reporter, 
5 ;  R.  R.  Co.  V.  Harris,  12  Wall.,  65 ;  Railway  Co.  v.  Whitton,  13  Wall.,  284. 


GoO  TKACTICE    AND    PLEADING. 

located  in  the  state  of  Arkansas.  It  is  provided  by  statute 
in  the  latter  state,  that  "  no  insurance  company  not  of  this 
state,  nor  its  agents,  shall  do  business  in  this  state,  until  it 
has  jBled  with  the  auditor  of  this  state  a  written  stipulation, 
duly  authenticated  by  the  company,  agreeing  that  legal 
process  affecting  the  company,  served  on  the  auditor  or  the 
agent  specified  by  the  said  company,  to  receive  service  of 
process  for  the  company,  shall  have  the  same  effect  as  if 
served  personally  on  the  company  within  the  state." '  It 
was  admitted  that  the  process  was  served  as  required  by  the 
statute;  but  the  court  held,  upon  the  authority  of  the  cases 
already  cited,  that  jurisdiction  could  not  be  obtained  iti  the 
circuit  court  by  such  service,  though  the  justice  of  the 
statutory  provision  was  fully  recognized.  The  restrictive 
provision  of  the  judiciary  act  was  recognized  as  a  defect  in 
the  jurisdiction  of  the  circuit  courts,  but  one  which  had 
existed  since  the  oro-anization  of  such  courts. 

§  1308.  How  Jurisdiction  OMained  in  Federal  Courts. 
There  is  no  doubt  that  jurisdiction  may  be  obtained  of  non- 
resident corporations  by  this  kind  of  service  of  process  issu- 
ing out  of  state  courts.  The  statutes  are  enacted  for  the 
express  purpose  of  enabling  them  to  obtain  service  upon 
corporations  doing  business  within  such  states,  and  eminent 
federal  judges  have  not  hesitated  to  notice  without  disap- 
proval the  indirect  means  frequently  emjjloyed  for  bringing 
such  corporations  into  the  federal  courts,  by  instituting  the 
suits  in  the  courts  of  the  state,  and  then  remo\ang  them  to 
the  circuit  court  of  the  United  States." 

§  1309.  How  Corporations  Served. —  Upon  what  partic- 
ular officer  of  a  corporation,  or  upon  what  class  of  officers, 
process  or  other  form  of  notice  may  be  served  in  proceed- 
ings against  the  corporation,  is  generally  regulated  by  stat- 
ute in  the  different  states,  and  by  act  of  congress  in  such 
cases  as  arise  in  the  federal  courts.     They  include  directors, 

iQantt's  Dig.,  §  3561;  Laws  1875,  p.  190. 

2  See  Still  well  v.  Empire  Insurance  Co.,  supra;  Atlantic  Tel.  Co.  v. 
New  Orleans,  etc.,  R.  R.  Co.,  supra.  §  1306. 


SERVICE.  C5T 

presidents,  secretaries,  treasurers,  managing  agents,  and  a 
multiplicity  of  other  oflBcial  representatives  too  numerous 
and  too  diverse  in  their  titles  to  admit  of  enumeration.  The 
managing  agent  is  recognized  by  the  courts,  both  federal 
and  state,  as  a  proper  person  to  serve  in  such  cases.'  Thougli 
process  was  held  not  well  served  where  the  return  showed 
service  on  the  "  business  manager,"  as  this  was  an  officer 
unknown  to  the  law.- 

§1310.  Service  Tpon  Ticket  Agent.— Where  the  pro- 
ceeding was  against  a  railroad  corporation,  the  process  was 
•ield  to  be  properly  served  upon  any  one  left  in  charge  of 
the  depot,  such  person  being  a  ticket  agent  or  other  subor- 
dinate officer,  when  the  company  had  designated  no  one 
else  to  accept  service  of  process  issued  against  it.^  But 
summons  was  held  not  well  served  upon  a  mere  book-keeper 
of  a  corporation.* 

§1311.  Where  the  Statute  Directory  and  Permis- 
sive.—  It  has  also  been  held,  where  the  language  of  the  stat- 
ute was  that  service  may  be  had  on  a  director  of  a  railroad 
corporation,  that  such  language  was  permissive  and  direct- 
ory, and  not  restrictive  or  mandatory,  and  hence  service  on 
a  station  agent  was  sufficient.^ 

§1312.  Service  on  Municipal  Corporation. —  In  suits 
against  public  or  municipal  corporations,  except  where 
otherwise  provided  by  statute,  process  should  be  served 
upon  the  principal  officer  or  representative  of  the  executive 
branch  of  the  government,  at  the  time  of  service.  And  it 
would  seem  that  he  might  be  served  with  such  process,  or 
mth  notice  of  any  proceeding  pending  against  the  corpora- 
tion, substantially  as  though  the  action  or  proceeding 
were  pending  against  him  in  his  individual  capacity.     As 

1  New  England  Car  Spring  Co.  v.  Union  Rubber  Co.,  4  Blatch.,  1 ;  Scor- 
pion S.  M.  Co.  V.  Marsano,  10  Nev.,  370. 

2  lUd. 

»M.,  K.  &  T.  Railway  Company  v.  Crowe,  9  Kan.,  496. 
< Chambers  v.  King  Wrought  Iron,  etc.,  Co.,  16  Kan,,  270. 
estate  v.  Hannibal  &  St.  Jo.  R.  R.  Co.,  51  Mo.,  532. 
42 


(558  PRACTICE    AND    PLEADING. 

where  a  suit  was  instituted  by  attachment  against  a  school 
district,  under  a  statute  providing  that  all  writs  against 
such  corporations  should  be  served  upon  the  clerk ;  and  the 
attachment  law  required  that  a  copy  of  the  writ  and  a  list 
of  the  property  should  be  delivered  to  the  party  or  left  at  his 
usual  place  of  abode,  an  attested  copy  of  the  writ,  etc.,  be- 
ing left  during  the  absence  of  the  clerk,  at  his  usual  place 
of  abode,  with  his  wife,  it  was  held  that  the  service  was 
sufficient.^ 

§  1313.  Upon  City  Clerk, Insufficient. —  But  a  summons 
or  other  notice  served  upon  the  clerk  ®f  a  city  would  be  in- 
effectual to  authorize  a  judicial  proceeding  against  the  city, 
unless  such  officer  was  legally  designated  for  that  purpose. 
The  proper  officer  to  serve  in  such  cases  is  the  mayor  of  the 
city.' 

§  1314.  Service  Upon  Partners. —  Where  there  are  two 
or  more  parties  interested  as  partners  adversely  to  the 
motion  or  other  proceeding  to  be  noticed,  except  where  the 
proceeding  is  in  its  nature  a  judicial  investigation,  service 
upon  one  of  such  partners  would  be  sufficient  to  bind  both 
or  all.^ 

§  1315.  Principal  Defendant. —  Where  there  are  several 
parties  defendant  in  a  suit,  and  the  statute,  or  rules  of  prac- 
tice, require  service,  under  certain  circumstances,  to  be  had 
upon  the  principal  defendant,  it  becomes  an  important  sub- 
ject of  inquiry  as  to  who  is  such  principal  defendant.  In 
deciding  this  matter  in  a  case  where  the  party  served  was  a 
corporation,  and  the  custodian  of  certain  stock  belonging 
to  another  defendant,  who  was  not  served,  it  was  held  that 
the  principal  defendant  must  be  one  such  as  are  known  in 
the  chancery  books  as  "  active  parties ; "  and  that  in  this  case 
that  was  the  owner  of  the  stock,  and  not  the  corporation.* 

1  Dow  V.  School  Dist.,  46  Vt.,  108. 
2 Nichols  V.  Boston,  98  Mass.,  39. 

sPerrine  v.  MiUer,  4  Thomp.  &  C.  (N.  Y.),  36;  Miller  v.  Perrine,  1  Hun 
(N.  Y.),  630. 
^Coleman's  Appeal,  75  Pa.  St.,  441. 


SEKVICB.  659 

§1316.  Service  Upon  Minors. —  Service  may  be  had 
upon  minors,  the  same  as  upon  adult  parties,  except  where 
the  statute  lays  down  a  different  rule  of  practice.  But  a 
minor  will  not  be  bound  by  a  Avritten  acknowledgment  of 
service,  whether  such  writing  is  executed  by  himself  or  his 
guardian,  or  both.^ 

§1317.  Upon  Convicts. —  So  may  process  be  served  upon 
a  convict  confined  in  the  penitentiary,  with  the  same  effect 
as  such  service  would  have  upon  another.^ 

§  1318.  Service  Upon  Party  by  Wrong  Name. —  The 
object  of  serving  the  original  process  or  other  form  of  no- 
tice upon  tha  party,  being  to  advise  him  of  the  pendency  of 
the  action  or  jjroceeding,  it  is  more  important  that  the  proper 
party  be  served  than  that  he  be  served  by  the  proper  name. 
As  a  rule,  therefore,  the  service  of  process  upon  the  proper 
party,  but  by  a  wrong  name,  will  sustain  a  judgment  entered 
against  such  party  pursuant  to  the  process  served.* 

§  1319.  Tariance  Between  Name  in  Process  and  Other 
Papers. —  It  has  been. held,  however,  that  a  judgment 
against  a  party  in  his  right  name,  Avhich  name  varies  from 
that  appearing  in  all  other  stages  of  the  proceedings,  though 
process  be  personally  served,  would  be  of  no  avail  against  a 
defendant  not  appearing  to  the  action.^  It  is  difficult  to  see 
in  what  essential  particular  the  case  supposed  differs  from 
any  other  in  which  there  is  a  misnomer  of  a  defendant  who 
is  in  fact  served.  The  authority  of  this  case  might  weU  be 
doubted,  had  it  been  decided  according  to  the  doctrine  laid 
down  in  the  dictum. 

§  1320.  Several  Defendants  in  Different  Counties. — 
When  an  action  is  against  several  defendants,  some  of  whom 
live  within  the  county  where  the  suit  is  instituted,  and  some 
of  them  are  residents  of  another  county,  in  the  same  state, 

1  Kansas  City  &  C.  E.  E.  Co.  v.  CampbeU,  62  Mo.,  585. 
2 Davis  V.  Duffle,  1  Abb.  App.  Dec,  486. 

3  Welsh  V.  Kirkpatrick,  30  Cal.,  203;  Pany  v.  Woodson,  33  Mo.,  347; 
Morgan  v.  Woods,  33  Ind.,  23. 
*  Moulton  V.  de  ma  Carty,  6  Eob.  (N.  Y.),  470. 


660  PKACTICE   AND   PLEADING. 

the  order  in  which  such  defendants  shall  be  served  is  some- 
times prescribed  by  statute  so  that  one  or  more  of  those 
resident  within  the  jm^isdiction  of  the  court  shall  be  first 
served.  Where  this  provision  is  in  force,  it  should  be  fol- 
lowed in  order  to  give  the  court  jurisdiction.* 

§  1321.  Service  Upon  Attorney. —  Where  the  matter  to 
be  noticed  is  anything  in  the  nature  of  an  interlocutory  mo- 
tion or  proceeding  arising  in  the  course  of  a  suit,  either  at 
law  or  in  equity,  including  notices  necessary  in  taking  testi- 
mony, notices  of  appeal,  etc.,  the  notice  should  be  served 
upon  the  attorney  where  one  is  employed.^  And  even  where 
the  attorney  of  record  had  retired  from  the  case,  but  no 
one  had  been  substituted,  as  required  by  the  statute  regulat- 
ing the  practice  of  the  court,  a  notice  served  upon  the  re- 
tiring attorney,  whose  name  still  appeared  upon  the  record, 
was  held  well  served.'* 

§  1322.  Same  in  Suit  Before  Justice  of  Peace. —  So, 
where  notice  of  appeal  from  a  justice's  court  was  served 
upon  the  attorney  of  appellee,  though  attorneys  were  not 
necessary,  and  the  statute  required  notice  of  such  appeals  to 
be  served  upon  "  the  party,"  omitting  the  words  "  or  his  at- 
torney," used  in  the  statutes  governing  appeals  from  other 
courts,  it  was  held  that  the  omission  was  evidently  without 
special  design,  and  service  upon  an  attorney  in  such  case 
was  sufficient.'* 

§  1323.  Should  Not  be  Upon  Attorney  Whose  Connec- 
tion with  Case  Has  Ceased. —  A  distinction  is  to  be  made 
between  cases  where  the  attorney  upon  whom  notice  is 
served  has  simply  retired  from  the  case,  and  where  his  con- 
nection with  it  has  ceased  by  reason  of  its  having  reached 
judgment,  and  the  execution  has  been  directed.   In  the  latter 

1  Qark  v.  Lichtenberg,  33  Mich.,  307. 

2 Bailey  v.  Wright,  24  Ark.,  78;  Rivers  v.  Walker,  1  Dal.,  85;  Nashr. 
GHkeson,  5  S.  &  R.,  853 ;  Newlin  v.  Newlin,  8  S.  &  R.,  41 ;  Hutcheson  v. 
Johnson,  1  Bin.,  59. 

3  Grant  v.  White,  6  Cal.,  55;  Herrin  v.  Libbey,  36  Me.,  350. 

4  Welton  V.  Garibardi,  6  Cal,,  345. 


SERVICE.  661 

case,  a  notice  upon  the  attorney  to  stay  proceedings  at  law 
would  not  be  binding  upon  the  party,  because  the  relation 
of  attorney  and  client  between  them  has  ceased  with  refer- 
ence to  that  case.^ 

§  1 824.  Due  Notice. —  When  by  the  terms  of  the  statute, 
or  the  rules  laid  down  by  the  court  for  the  regulation  of 
practice  therein,  any  proceeding  is  authorized  only  upon  due 
notice  to  the  opposite  party,  the  term  "  due  "  is  generally 
understood  to  have  reference  to  the  length  of  time  which 
should  elapse  between  the  service  of  the  notice  and  the  hear- 
ing of  the  motion  or  other  proceeding.  This  indefinite  word 
is  employed  where  it  is  impracticable  or  inexpedient  to 
undertake  to  fix  the  time  for  any  given  number  of  days.  It 
necessarily  leaves  to  the  court  a  very  large  discretion  in  the 
matter  of  time ;  for  not  only  is  the  word  indefinite  in  its 
general  signification,  but  it  is  used  in  reference  to  so  many 
different  and  totally  dissimilar  proceedings,  that  it  has  been 
found  impossible  for  the  courts  to  give  it  a  rational  con- 
struction, applicable  alike  to  all  cases.  The  nearest  approach 
to  a  fixed  rule  would  be,  that  due  notice  of  any  judicial 
proceeding  is  notice  for  such  time  as  the  circumstances  of 
each  particular  case  and  the  situation  of  the  parties  may, 
in  the  discretion  of  the  court,  require.  This,  however,  is  no 
rule  at  all,  but  merely  a  relegation  of  the  whole  question  to 
the  discretion  of  the  court  wherein  the  matter  is  pending.^ 

§  1325.  Application  for  Injunction. —  In  the  case  of  an 
application  for  injunction  to  restrain  defendant  from  the 
prosecution  of  a  suit  in  ejectment,  where  due  notice  was  re- 
quired, and  the  notice  being  served  on  the  day  next  pre- 
ceding that  upon  which  the  case  was  set  for  hearing,  the 
court,  in  view  of  all  the  circumstances,  finding  that  there  was 
no  laches  on  the  part  of  the  party  making  the  application, 
held  such  notice  sufficient.^ 

J  Kamm  v.  Stark,  1  Sawyer,  547. 

2  Lawrence  v.  Bowman,  1  McAllister,  C.  Ct,,  419;  Allen  v.  Hill,  16 
Cal.,  113. 

3  Lawrence  v.  Bowman,  supra. 


662  PEACTICE   AND    PLEADING. 

§1326.  Construction  of  Reasonable  Notice. —  Cases 
sometimes  arise  where  notice  is  required,  without  a  time 
being  fixed,  or  intimated  beyond  the  provision  that  it  shall 
be  ''reasonable"  notice.  In  order  to  meet  the  requirements 
of  the  statute,  notwithstanding  the  vagueness  of  its  provis- 
ions, the  courts  resort  to  other  statutes  to  learn  what  time 
is  thereby  fixed  in  analogous  cases. 

§  1327.  Time  Fixed  by  Statute. —  Where,  however,  the 
time  within  which  notice  is  to  be  served  is'  fixed  by  statute, 
a  failure  to  comply  will  be  fatal.  As  where  an  appeal  was 
taken  and  the  notice  was  not  served  in  time,  the  appeal  was 
dismissed^  notwithstanding  the  respondent  had  made  the 
following  written  acceptance  of  service :  "  Due  service  of  a 
copy  of  the  within  notice  is  hereby  accepted  to  have  been 
made  this  20th  day  of  February,  1863."  And  the  judg- 
ment Avas  affirmed  on  appeal,  the  court  holding  that  the 
acceptance  only  admitted  service  on  a  certain  date,  which 
by  the  record  appeared  to  be  too  late.^ 

§  1328.  Admission  of  Notice. —  But  an  unqualified  ad- 
mission of  "  due  "  service  of  notice  of  appeal,  without  men- 
tioning any  date,  amounts  to  a  waiver  of  all  objections  to 
the  time  within  which  the  notice  was  served.^ 

§  1329.  Time  of  Notice  of  Motion  for  New  Trial.— It 
is  nearly,  if  not  quite,  the  universal  rule  to  have  a  time  fixed 
by  statute  or  rule  of  court,  within  which  notice  must  be 
given  of  an  intention  to  move  for  a  new  trial.  This  notice 
may  be  by  an  entry  on  a  book  kept  for  that  purpose,  or  by 
service  on  the  opposite  party,  but  must  be  served  within  the 
prescribed  time,  or  it  will  be  considered  that  the  party  has 
waived  his  right  to  have  such  motion  entertained.''  In  the 
case  of  Carpentier  v.  Thurston,*  the  matter  of  ti7)ie  became 

iTowdy  V.  Ellis,  23  Cal.,  650. 

2Struverv,  Ocean  Insurance  Ck).,  9  Abb.  Pr.,  23;  Talman  v.  Barnes, 
12  Wend.,  227. 

3Caney  v.  Silverthorne,  9  Cal.,  67;  Ellsassar  tJ.  Hunter,  26  Cal.,  379; 
State  V.  First  National  Bank,  4  Nev.,  358. 

4  30  Cal.,  123. 


SERVICE.  G63 

important  in  considering  whether  the  notice  of  motion  for 
a  new  trial  was  served  in  compliance  with  the  statute.  The 
time  fixed,  in  trials  by  the  court,  was  "  ten  days  after  re- 
ceiving written  notice  of  the  rendering  of  the  decision  of 
the  judge."  The  cause  having  been  previously  decided, 
the  judge,  on  tlie  11th  of  Marcli,  and  during  vacation,  de- 
livered to  plaintiff  written  findings  and  a  draft  of  judgment 
in  his  favor.  On  the  same  day,  plaintiff  gave  defendant 
the  following  written  notice :  After  stating  the  venue  and 
the  title  of  the  cause  —  "  Please  take  notice  that  the  find- 
ings in  the  above  entitled  cause  have  this  day  been  signed 
by  the  judge  of  said  court,  and  his  decision  herein  ren- 
dered in  favor  of  plaintiff,  March  11,  1865."  The  findings 
and  draft  of  judgment  Avere  delivered  to  the  clerk  of  the 
court,  and  were  by  him  filed  and  the  judgment  entered 
March  13,  and  on  the  same  day,  notice  of  defendant's  in- 
tention to  move  for  a  new  trial  was  served  upon  plaintiff. 
Construing  the  written  notice  from  plaintiff  most  strongly 
against  its  author,  the  appellate  court  held  that,  as  the  de- 
cision was  not  rendered  on  the  11th,  as  stated  in  such  notice, 
consequently  it  was  not  a  notice  of  the  rendition  of  judg- 
ment, but  simply  of  the  signing  findings,  and  that  there 
was  no  notice  of  the  rendering  of  the  decision  until  the 
13th,  which  allowed  defendant  until  the  23d  to  give  notice 
of  his  intended  motion. 

§  1330.  Time  Computed  from  Date  of  Service. —  It 
will  be  observed  that  the  time  is  computed  from  the  service^ 
and  not  from  the  date  of  the  notice,  in  order  to  ascertain 
whether  it  is  due,  reasonable,  or  given  within  the  prescribed 
time.  So  where  ten  days'  notice  of  a  sale  was  required  by 
contract,  and  the  notice  was  dated  on  the  15th,  and  served 
on  the  ITth,  that  the  sale  would  take  place  on  "  ten  days 
after  date,"  the  service  was  held  insufficient.' 

§1331.  How  Time  Computed. —  In  calculating  the  time 
of  service  of  a  notice  of  hearing,  either  the  day  on  which 

1  Chase  v.  Hogan,  6  Bosw.  (N.  Y.),  431. 


664  PBAOTICE   AND   PLEADING. 

the  notice  is  served,  or  the  day  on  which  the  hearing  is  to 
be  had,  is  excluded  from  the  computation.^ 

§  1332.  Summons  Must  be  for  Full  Time. —  The  service 
of  original  process,  in  a  suit  at  law,  is  never  left  to  conject- 
ure, in  point  of  time ;  and  where  there  is  any  difference  in 
the  strictness  with  which  the  law  is  enforced  in  this  partic- 
ular, between  a  summons  and  a  notice  of  hearing  of  a  mo- 
tion or  other  interlocutory  proceeding,  where  the  time  of 
service  is  prescribed,  the  more  rigid  compliance  is  required 
in  serving  the  original  process.  Unless  the  summons  is 
served  for  the  full  time  before  return  day,  it  is  an  absolute 
nuUity.- 

§  1333.  Time  of  Notice  of  Taking  Depositions,  etc. — 
As  to  the  time  required,  in  the  service  of  notices  to  take 
depositions,  and  to  produce  papers,  etc.,  on  the  trial,  the 
reader  is  referred  to  the  parts  of  this  chapter  where  those 
subjects  are  separately  treated.^ 

§  1334.  Manner  and  Mode  of  Service. —  The  manner  and 
mode  of  service  depends,  of  course,  upon  the  character  of 
the  proceeding,  as  well  as  the  statute  by  which  the  same  is 
regulated.  In  general,  however,  where  notice  is  required 
by  statute  or  rule  of  court,  and  the  method  of  serving  the 
same  is  not  laid  down,  it  is  understood  that  there  shall  be 
'personal  service.*  And  when  the  statutory  proceeding  is 
one  in  derogation  of  common  right,  as  the  involuntary  sale 
of  the  property  of  an  individual,  the  statute  must  be  strictly 
construed  and  closely  pursued.^ 

§  1335.  Personal  Service. —  When  it  appears  from  a 
reasonable  construction  of  the  statute  or  rule  that  ])crsonal 
service  was  intended,  no  other  can  be  substituted  so  as  to 

1  Anderson  v.  Baughman,  6  Mich.,  298. 
2 Draper  v.  Draper,  59  111.,  119. 
'  See  ante. 

^Eathburn  v.  Acker,  18  Barb.,  393;  McDermot  v.  Board  of  Public, 
etc.,  25  Barb.,  635. 
6  Rathburn  v.  Acker,  supra. 


SERVICE.  665 

render  the  proceeding  binding  upon  the  party  served,  in 
case  he  refuses  to  recognize  the  same.^ 
§  1336.  Leaving  it  at  Place  of  Abode,  Not  Sufficient. — 

So  where  personal  service  of  a  notice  from  street  commis- 
sioners to  the  owners  of  property  adjacent  to  certain  streets, 
requiring  such  property  owners  to  improve  the  street,  it 
was  held  that  such  notice  could  not  be  legally  served  during 
the  temporary  absence  of  the  owner,  by  leaving  it  at  his 
usual  place  of  abode.- 

§  1337.  Personal  Upon  Attorney. —  So,  also,  where  the 
notice  was  one  which  should  have  been  served  personally 
upon  the  attorney  of  the  adverse  party,  it  was  not  Avell 
served  by  putting  it  under  the  attorney's  door,  and  taking 
no  further  care  to  see  that  it  was  received.  Had  there  been 
a  call  upon  the  attorney  on  the  following  day  when  his 
ofRce  door  was  open,  and  an  inquiry  after  the  notice,  the 
service  might  have  been  regarded  as  sufficient,  because  such 
diligence  might  have  insured  its  receipt.  And  there  is  no 
form  of  notice,  except  perhaps  original  process,  which  may 
be  invalidated  by  reason  of  its  being  served  in  an  improper 
manner,  provided  it  be  received  in  due  time.* 

§  1338.  Strict  Requirement  as  to  Summons. —  Orig- 
inal process,  in  order  to  sustain  a  personal  judgment,  should 
be  personally  served  except  where  some  other  form  of  serv- 
ice is  provided  by  statute.  So  strict  are  the  courts  in  en- 
forcing the  requirements  of  the  statute  in  this  respect,  that 
in  one  case  where  personal  service  was  required,  it  was  held 
that  an  admission  of  service  would  not  be  sullBcient  to  war- 
rant judgment  by  default,  unless  it  was  an  admission  oi  per- 
sonal service.*  So  where  personal  service  of  the  original 
notice  was  required  by  statute  in  a  suit  against  partners,  it 
was  held  that  service  upon  the  wife  of  one  of  such  partners 
would  not  be  sufficient.^ 

1  Bond  V.  Whitfield,  28  Ga.,  537. 
-  Simons  v.  Gardiner,  6  R.  I. ,  255. 
3  Burdett  v.  Lewis,  7  C.  B.  (N.  S.),  791. 
^  Read  v.  French,  28  N.  Y.,  285. 
sBrydolf  v.  Wolf,  32  Iowa,  509. 


666  PKACTICE   Ai^D   PLEADING. 

§  1339.  Different  Modes  of  Personal  Seryice.— But 
where  there  is  no  question  but  that  the  notice  is  intended 
to  be  served  personally  upon  the  party  to  be  affected  by 
the  action  or  proceeding  noticed,  the  manner  of  making 
the  service  is  subject  to  certain  modifications  incident  to 
Mh^fonn  of  the  notice.  It  need  hardly  be  remarked  that  a 
verbal  notice  may  be  orally  served ;  but  when  the  notice  is 
in  writing,  there  is  more  than  one  method  provided  for 
serving  it  personally ;  the  first  and  most  obvious  is  by  deliv- 
ering to  the  party  the  original.  The  second  is  by  delivering 
a  copy,  and  a  third  is  by  reading  the  notice  to  the  person 
served. 

§  1340.  By  Reading  Original  or  Delivering  Writing. — 
"Whether  a  written  notice  shall  be  served  by  delivery  of  the 
writing  or  a  copy  thereof,  or  by  reading  the  original,  or  by 
either,  at  the  option  of  the  officer  or  other  person  making 
the  service,  is,  in  most  instances,  regulated  by  statute ;  but 
this  is  not  always  the  case.  And  when  the  statute  is  silent 
as  to  the  manner  of  service  of  a  notice  in  writing,  beyond 
the  requirement  that  it  shall  be  personal,  the  question  may 
arise  as  to  whether  reading  the  written  notice  would  be  a 
sufficient  compliance  with  the  law. 

§  1341.  Written,  Must  l)e  by  Delivery. —  In  the  case  of 
Pursley  ^^  Ilays,^  it  is  intimated  that  personal  service  of  an 
original  notice,  when  the  same  is  attached  to  the  petition, 
may  be  made  b}^  reading,  as  well  as  by  delivery  of  a  copy 
to  the  party  served.  However,  under  a  statute  of  Rhode 
Island,  requiring  "reasonable  notice  in  writing"  of  the 
appointment  or  removal  of  a  guardian,  it  was  held  that  such 
notice  could  not  be  personally  served  by  reading  the  same.^ 
Judge  Story,  in  delivering  the  opinion  of  the  court,  said : 
"  I  understand  that  the  notice  must  be  a  notice  in  writing ; 
that  the  officer  must  leave  with  the  party  a  written  notice, 
an  original  from  the  clerk,  or  at  least  a  certified  copy,  in 
writing,  thereof.     In  no  just  sense  can  a  notice  by  reading 

1  22  Iowa,  11,  28. 

2  Hart  V.  Gray,  3  Sumn.  (U.  S.),  339. 


SERVICE.  C67 

be  deemed  a  notice  by  writing.  *  *  *  No  instance,  I 
beKeve,  can  be  produced  where  a  notice,  requii-ed  to  be 
served  and  given  in  writing,  has  been  held  valid,  unless  the 
service  has  been  by  the  delivery  of  the  paper  itself,  or  a 
copy  in  Avriting." ' 

§  1342.  Rule  Deduced  from  Foregoiug. —  We  have  seen 
that  when  the  manner  and  mode  of  service  is  not  pointed 
out  by  the  statute,  personal  service  is  generally  understood.- 
It  seems  also  to  be  settled,  both  upon  principle  and  author- 
\tj,  that  a  vjritten  notice  can  only  be  served  by  deliver}'-  of 
the  original,  or  an  authenticated  copy.^  Jf  the  foregoing  is 
sound  doctrine,  we  may  deduce  therefrom  the  rule  that  a 
notice,  required  by  statute  to  be  in  writing,  in  the  absence 
of  any  designation  of  the  manner  and  mode  of  its  service, 
shall  be  served  by  delivery  of  the  original  or  a  copy  thereof 
to  the  party  to  be  affected  by  the  proceeding  noticed.  How- 
ever, the  cases  have  not  all  been  decided  in  conformity  to 
this  rule.  In  the  case  of  Hildreth  v.  Lowell,*  it  is  decided, 
where  it  was  required  by  a  city  ordinance  that  the  officers 
should  "  give  notice  in  writing  to  the  several  owners  "  of 
property  across  which  it  was  intended  to  lay  out  a  drain, 
that  the  provisions  of  the  ordinance  were  sufficiently  com- 
plied with  by  giving  personal  notice  to  the  known  owners, 
and  by  posting  two  or  more  copies  of  such  notice  at  public 
places  in  the  city.  But  in  whatever  manner  the  original 
process  may  be  served,  it  will  be  regarded  as  sufficient,  both 
at  law  and  in  equity,  where  the  receipt  of  the  writ  is  prop- 
erly acknowledged  in  writing.^ 

§  1343.  Service  at  Place  of  Abode. —  "We  now  come  to 
the  consideration  of  a  species  of  service  which  has  been 
denominated  jpersonal^  to  distinguish  it  from  service  hy  mail;  ^ 
and  substituted^  as  contradistinguished  from  service  strictly 

iSee  Fitts  v.  Whitney,  33  Vt.,  589. 
iJSee  ante,  %  1334. 

3  Hart  V.  Gray,  supra ;  Fitts  v.  Whitney,  supra. 

4  11  Gray,  345. 

5  Banks  v.  Banks,  31  111.,  163. 

6  See  ante,  part  FV,  ch.  X. 


668  PKACTICE   AND   PLEADING. 

personal}  It  has  also  been  called  both  actuaP  and  construct- 
ive ^  service.  It  is  made  by  leaving  the  original  or  a  copy 
at  the  usual  place  of  abode  of  the  party  to  be  served,  with 
some  one  other  than  himself. 

§  1JJ4:4:.  Creneral  Remarks. —  The  fact  that  this  method 
of  service  is  so  differently  classified  is  not  at  all  surprising 
when  we  consider  the  different  circumstances  under  which 
it  is  employed.  When  the  matter  noticed  is  the  dishonor  of 
a  note  or  bill,  the  prompt  payment  of  which  the  party  noti- 
fied has  conditionally  guarantied,  it  may  fairly  be  presumed 
that  he  has  provided  against  the  contingency  which  he 
knows  may  arise  at  a  time  certain,  and  that  a  notice  left  for 
him  at  his  residence  or  place  of  business  would  be  less 
likely  to  meet  with  a  careless  reception  from  those  in  charge 
during  his  absence  than  a  notice  of  a  matter  of  which  he  has 
had  no  previous  warning,  and  for  which  he  could  have  made 
no  adequate  preparation.  He  may  justly  be  presumed  to 
remember  that  he  has  indorsed  a  biU  or  note,  which  may  be 
dishonored  on  a  certain  day,  and  that  he  has  left  directions 
concerning  the  receipt  of  notices  of  such  matters.  No  man 
may  be  supposed  to  calculate  upon  being  served  with  orig- 
inal process,  or  with  notice  of  an  interlocutory  or  other  pro- 
ceeding in  court, 

§  1345.  Leaving  at  Residence  or  Place  of  Business  Only 
Prescribed  by  Statute. —  However,  it  is  quite  certain  that 
though  this  method  of  service  may  be  very  liberally  viev/ ed 
for  some  purjDoses,  yet  it  is,  in  no  instance,  regarded  with 
the  same  favor  as  service  strictly  personal.  So  far  as  it  is 
resorted  to  in  matters  of  practice,  it  is  recognized  only  be- 
cause it  is  prescribed  by  statute,  or  is  employed  in  a  pro- 
ceeding analogous  to  one  where  it  is  so  authorized,  and,  like 
aU  statutory  innovations,  must  be  strictly  construed.* 

1  Chittenden  v.  Hobbs,  9  Iowa,  417. 
ssturgis  V.  Fay,  16  Ind.,  429. 
SBrownfield  v.  Dyer,  7  Bush  (Ky.),  505. 

^Brownfield  v.  Dyer,  7  Bush  (Ky.),  505;  Mullins  v.  Sparks,  45  Miss., 
129;  Pollard  v.  Wegener,  13  Wis.,  569. 


SEEVICE.  669 

§  1346.  In  What  Cases  Officer  May  Elect  Mode.— In 

some  cases  the  statute  authorizes  this  method  of  service  to 
be  resorted  to  at  the  option  of  the  officer  or  other  party 
who  has  the  notice  in  charge  to  serve,  regardless  of  whether 
service  might  not  be  had  upon  the  party  in  person.*  But  in 
other  cases  it  is  only  permitted  when  personal  service  is 
impracticable.^  In  order  to  justify  the  leaving  of  the  notice 
or  writ,  with  any  one  other  than  the  person  to  be  notified, 
it  is  necessary  not  only  that  it  should  appear  to  be  the  most 
convenient  and  expeditious  method  of  disposing  of  the  mat- 
ter, but  that  it  was  the  only  practicable  method  at  the  time. 
It  is  not  sufficient  for  the  return  to  show  that  the  party 
was  absent  from  his  residence  where  the  paper  was  left,  but 
that  he  could  not  be  found  within  the  jurisdiction  of  the 
court.^ 

§  1347.  Leaving  at  Place  of  Residence. —  Under  a  stat- 
ute requiring  a  summons  to  be  delivered  to  the  person  served, 
or  left  at  his  place  of  residence,  it  is  not  sufficient  to  leave 
a  copy  at  his  place  of  business,  unless  it  is  also  where  he  re- 
sides at  the  time.*  And  where  it  is  required,  in  the  event 
that  it  is  not  served  personally,  that  it  shall  be  left  at  de- 
fendant's usual  place  of  abode,  with  a  member  of  his  family, 
etc.,  the  summons  will  not  be  sufficiently  served  by  leaving 
it  with  his  wife  unless  it  be  left  with  her  at  the  husband's 
place  of  abode  as  the  statute  requires.-^ 

§  1348.  Family  of  Which  Party  is  a  Member. —  But  it 
will  be  a  sufficient  compliance  with  the  statute,  so  far  as  it 
relates  to  the  person  with  whom  it  is  to  be  left,  if  such  per- 
son be  a  member  of  the  family  to  which  the  party  belongs, 
whether  he  be  the  head  of  the  family  or  not.  It  is  sufficient 
if  the  party  to  be  served,  and  the  one  with  whom  the  paper 
is  left,  live  together  in  the  same  family.^ 

1  Hughes  V.  Osborn,  42  Ind.,  450 ;  Rosseau  v.  Gay  aire,  24  La.  Au.,  855. 

2  Davis  V.  Burt,  7  Iowa,  56 ;  Chittenden  v.  Hobbs,  9  id.,  417. 
3Matteson  v.  Smith,  87  Wis.,  333. 

<  Lambert  v.  Sample,  25  Ohio  St.,  336. 
3 Hewitt  V.  Weatherby,  57  Mo.,  276. 
b  Converse  v.  Warren,  4  Iowa,  158. 


C70  PRACTICE   AJSTD    PLEADING. 

§  1 349.  Must  be  at  Present  Place  of  Abode. —  Courts  of 
equity  are  equally  strict  in  enforcing  the  observance  of  the 
rules  governing  the  service  of  process,  when  their  subpoenas 
are  served  otherwise  than  personally,  in  the  strictest  sense 
of  the  term.  It  has  accordingly  been  held  that  it  will  not 
be  sulBcient  to  leave  a  subpoena  at  the  last  usual  place  of 
abode,  but  that  it  must  be  left  at  the  lyresent  dwelling-house 
or  usual  place  of  abode  of  the  party  served.^ 

§  1350.  Necessity  for  Strict  Construction. —  The  neces- 
sity for  a  strict  construction  of  statutes  authorizing  the  sub- 
stitution of  this  method  of  service,  for  that  which  brings  the 
matter  directly  to  the  knowledge  of  defendant,  is  fairly  illus- 
trated by  the  recent  case  of  Earle  v.  McYeigh.-  There  the 
statute  seemed  sufficiently  accommodating  to  satisfy  the 
eagerness  of  the  most  persistent  prosecution ;  for  it  provided 
that,  during  the  absence  of  the  defendant  and  all  the  mem- 
bers of  his  family,  notice  of  suit  might  be  served  by  posting  it 
upon  the  front  door  of  his  usual  place  of  abode.  The  defend- 
ant in  this  case  had  vacated  his  residence,  with  his  family, 
seven  months  previous  to  the  attempted  service,  and  they  had 
ever  since  resided  within  the  Confederate  lines.  The  notice 
was  accordingly  posted  upon  the  front  door  of  the  tenantless 
house,  and  defendant  appearing  by  attorney,  the  appearance 
was  stricken  out,  because  of  the  very  absence  alleged  as  a 
ground  for  the  spurious  service  of  process.  The  learned  jus- 
tice of  the  supreme  court  who  rendered  the  opinion  not  onl}' 
took  occasion  to  reprobate  the  striking  out  of  defendant's 
appearance  in  response  to  the  notice,  but  decided,  with  the 
full  concurrence  of  the  entire  bench,  that  the  place  where 
the  notice  was  posted  was  not  defendant's  "  usual  place  of 
abode,"  and  hence  the  service  was  not  suiUcient  to  warrant 
the  judgment,  which  was  declared  void.  It  appears  from  a 
reference  to  this  and  other  of  the  best  considered  cases  upon 
this  subject,  that  service  made  in  this  manner  must  be  in 

iHyslop  V.  Hoppock,  5  Ben.,  447;  S.  C,  6  Bankr.  Reg.,  552;  Pigott  v. 
SneU,  59  lU.,  106. 
2  91  United  States  (1  Otto),  503. 


SEKVICE.  671 

strict  conformity  to  the  statute  by  which  it  is  authorized. 
And  in  no  respect  are  the  courts  more  exacting  than  in  the 
matter  of  thej'^Zace  where  the  notice  or  copy  should  be  left. 
If  it  is  required  to  be  the  "  place  of  abode,"  the  proof  of 
service  must  be  in  language  that  will  describe  that  place 
and  no  other,^  It  will  not  be  sufficient  that  it  is  served  at 
the  defendant's  "house,"  for  he  may  have  many  houses. 
jSTor  even  at  his  "  dwelling-house,"  for  circumstances  may 
render  this  equally  indefinite.  And  we  have  seen  by  the 
case  last  cited  that  mistakes  may  easily  be  made  in  deciding 
what  is  the  "  usual  place  of  abode."  It  is  not  sufficient  that 
the  premises  are  the  property  of  defendant;  that  he  has 
resided  there,  and  may  reasonably  be  expected  to  make  that 
his  dwelling-place  in  the  future.  It  should  be  his  present 
place  of  abode,  and  the  qualifying  word  "usual"  is  em- 
ployed simply  to  meet  cases  where  the  abiding  place  of  the 
defendant  is  capriciously  changed  at  uncertain  intervals 
from  that  where  he  is  accustomed  to  reside,  and  which  he 
calls  his  home.  Mere  absence  from  home,  it  is  true,  wiU 
not  destroy  the  cliaracter  of  the  "  place  of  abode ; "  but  when 
the  defendant  has,  with  his  family,  taken  up  his  residence 
elsewhere,  he  cannot  be  said  to  have  an  abiding  place  at  his 
former  residence,  for  the  present  abandoned.- 

§  1351.  Actions  Against  Property.— When  the  object 
of  the  action  is  to  affect  the  title  to  property,  either  real  or 
personal,  the  notice  may  be  served  by  methods  still  less 
direct  than  that  above  described,  as  by  posting  notices  in 
public  places,^  and  by  publication  in  a  newspaper,^  Avhen 
there  must  be  a  strict  comphance  with  the  statute  in  every 
substantial  particular.* 

§  1352.  Personal  Service  in  Foreign  State. —  There  is 
another  mode  of  service  which  has  been  adopted  in  several 

1  See  case  cited  supra. 
2Earle  v.  McVeigh,  supra. 

3  People  V.  Bernard,  43  Cal.,  385. 

4  See  ante,  ch.  XI,  Publication  of  Notices. 


672  PEACTICE   AXD   PLEADING. 

of  the  states,  and  may  be  resorted  to  in  actions  in  rem, 
when  the  defendant  is  beyond  the  territorial  jurisdiction  of 
the  court,  and  that  is  by  serving  him  in  person  in  the 
foreign  state.^  But  such  service  will  not  support  a  personal 
judgment  in  the  state  from  Avhence  the  process  issues.- 
Where  a  suit  was  brought  under  such  a  statute,  the  judg- 
ment was  set  aside  because  it  did  not  a])pear  affirmatively 
from  the  affidavit  by  which  the  service  was  proved,  that  the 
copy  of  petition  and  notice  were  delivered  to  the  defendant 
at  some  place  without  the  state,  and  within  the  United 
States.^  It  has  also  been  held  under  a  similar  statute  in  an- 
other state,  that  this  mode  of  service  could  only  be  employed 
where  publication  had  been  ordered,  and  that  such  service 
would  not  be  complete  until  the  expiration  of  the  time  of 
publication.^ 

§  1353.  Proof  of  Foreign  Service. — It  cannot  be  doubted 
that  service  made  in  this  manner  will  be  more  effective  as 
notice  to  the  parties  to  be  affected  by  the  action  or  proceed- 
ing, than  where  it  is  published  in  a  newspaper  or  posted  in 
"public  places."  But  considerable  care  is  necessary  in 
proving  such  service,  lest  the  court  be  imposed  upon  by  a 
supposititious  delivery  of  the  notice  to  the  non-resident 
party.  It  was  accordingly  held  in  one  case,  that  where 
service  was  made  by  this  mode,  it  should  be  shown  by  the 
affidavit  of  service  that  the  notice  was  served  upon  the 
identical  person;  the  affidavit  of  his  aclmowledgment  of 
identity  not  being  sufficient.^ 

§  1354.  Acknowledgment  of  Service. —  However,  where 
the  statute  provided  that  an  original  notice  might  be  served 
by  having  the  acknowledgment  of  service  indorsed  upon 
the  notice  dated  and  signed  by  the  defendant,  a  notice  so 
served  was  held  to  require  no  further  formal  proof  of  serv- 

1  Salisbury  v.  Sands,  2  Dill.,  270;  Darrance  v.  Preston,  18  la.,  396. 

2  Weil  V.  Lowenthal,  10  Iowa,  575. 

3  Fisher  v.  Fredericks,  33  Mo.,  612. 

4  Brooklyn  Trust  Co.  v.  Bulmer,  49  N.  Y.,  84 
8  Cole  V.  AUen,  51  Ind.,  123. 


SERVICE. 


ice  than  such  acknowledgment,  and  that  a  waiver  of  service 
so  indorsed  was  equivalent  to  such  acknowledgment,  and 
was  good  thouo^h  made  in  another  state.' 


o 


§  1355.  Sei'Tice  by  Mail. —  Xotice  of  the  dishonor  and 
protest  of  bills  of  exchange  may  be  served  by  simply  de- 
positing the  same  in  the  postoflfice,  properly  addressed  to 
the  antecedent  party  to  be  notified.-  But  though  service 
may  be  made  by  this  mode,  of  such  notices  as  are  required 
in  practice,  they  cannot  be  served  in  this  manner  with  tlic 
same  conclusive  effect  for  all  purposes  upon  the  party  served, 
as  would  foUoAv  a  similar  service  of  notice  of  protest,  or 
personal  service  of  original  process.  In  matters  of  practice, 
service  by  this  method  is  only  resorted  to  as  a  substitute 
for,  or  an  adjunct  to,  service  by  publication  in  a  newspaper, 
and  of  course  process  so  served  would  not  authorize  a  per- 
sonal judgment.  Such  service  is  usually  made  upon  the 
order  of  the  court. ^  Even  when  the  statute  authorizes  the 
service  of  summons  outside  of  the  county  in  which  the  suit 
is  instituted,  where  the  action  is  on  contract,  this  will  not 
authorize  service  in  actions  on  the  case  for  damages  for  al- 
leged fraud  and  deceit  in  making  a  contract.*  The  service 
of  process  by  mail  is  only  authorized  under  certain  condi- 
tions, and  as  a  general  rule,  when  a  party  relies  upon  service 
obtained  by  this  mode,  he  should  be  able  to  make  it  appear 
that  such  conditions  were  in  existence  at  the  time ;  other- 
wise such  service  will  be  insufficient."  When  the  deposit  of 
a  notice,  addressed  to  the  defendant,  is  by  statute  made  one 
of  the  steps  in  obtaining  constructive  service  by  publication, 
there  is  the  same  necessity  for  a  strict  observance  of  the 
duties  imposed  by  law,  in  regard  to  the  mailing,  as  there  is 

1  Johnson  v.  Monell,  13  Iowa,  300.  But  see  Chickering  v.  FaQes,  26 
Dl.,  507,  where  it  is  held  that  acknowledgment  of  service  will  not  be 
sufficient;  McDaniel  v.  Correll,  19  111.,  226. 

2  See  ante,  ch.  X,  part  IV. 

3  Wilson  V.  Basket,  47  Miss.,  637. 

4  Wirtz  V.  Henry,  59  111.,  109. 

5  Clark  V.  Adams,  33  Mich.,  159. 

43 


G74  PEACTICE    AND    PLEADING. 

for  publishing  the  notice  the  requisite  number  of  days.'  So 
where  the  proof  of  service,  in  addition  to  the  publication, 
was  that  a  paper  containing  a  copy  of  the  notice  published 
Avas  deposited  in  the  postoffice,  directed  to  two  defendants 
composing  a  firm,  by  their  firm  name,  mentioning  the  ini- 
tials of  their  Christian  names,  such  service  was  held  insuffi- 
cient, for  the  reason  that  a  copy  of  the  notice  should  have 
been  sent  to  each.  Being  addressed  to  both,  its  receipt  by 
either  was  regarded  as  uncertain,  so  that  it  was  held  pvima 
facie  void  as  to  both.- 

§  1356.  Chancery  Proceedings  in  United  States  Court. 
The  substituted  service  provided  by  state  laws  is  not  allow- 
able in  suits  in  equity  in  the  United  States  courts  held 
within  those  states.  The  manner  of  serving  a  subpoena  in 
chancery  is  regulated  by  the  acts  of  congress  and  the  rules 
of  the  United  States  supreme  court.  The  service  must  be 
within  the  district  for  which  the  federal  court  is  held,  or  it 
will  not  confer  jurisdiction  of  the  person  served.^ 

§  1357.  On  Board  Foreign  Tessel. —  Process  may  be 
legally  served  on  a  defendant  while  he  is  still  on  board  a 
British  mail  steamer,  after  her  arrival  at  the  dock  in  an 
American  port,  but  before  she  is  moored.* 

§  1358.  Non-resident  Temporarily  Within  Jurisdic- 
tion.—  "Where  "  further  notice  "  was  provided  by  statute 
for  non-resident  defendants,'^  it  was  held  that  when  such 
non-resident  was  actually  found  and  served  within  the  com- 
monwealth, he  was  not  entitled  to  any  further  notice ;  but 
the  service  would  be  regarded  as  sufficient.*^  This  would 
depend,  however,  to  some  extent,  upon  the  circumstances 
by  which  he  was  influenced  or  induced  to  come  within  the 
state  where  served.     A  party  to  a  suit  in  chancery,  pending 

1  Scorpion  S.  M.  Co.  v.  Marsano,  10  Nev.,  370. 

2Lildns  V.  McCormick,  39  Wis.,  313. 

SHyslop  V.  Hoppock,  5  Ben.,  533;  McClosky  v.  Cobb,  2  Bond,  16. 

4  Peabody  v.  Hamilton,  106  Mass.,  317. 

5  Mass.  Gen.  Stat.,  ch.  123,  §  28;  id.,  ch.  126. 
SReeder  v.  Holcomb,  105  Mass.,  93. 


SERVICE.  675 

m  a  state  where  he  does  not  reside,  "who  comes  within  such 
state  for  the  purpose  of  testifying  before  a  master,  though 
he  comes  without  siibpmna  testijicanduni,  has  been  held  ex- 
empt from  the  service  of  process  during  his  sojourn  for  that 
purpose.^  So  where  a  person  has  been  fraudulently  enticed 
^vithin  the  jurisdiction  of  the  court  merely  for  the  purpose 
of  obtaining  service  of  process  in  a  contemplated  suit 
against  him,  such  service  may  be  set  aside  and  vacated  as 
irregular."  But  where  a  citizen  of  another  state,  claiming 
to  have  been  enticed  within  the  territorial  jurisdiction  of 
the  court  for  the  purpose  of  obtaining  service,  suffered 
judgment  to  go  by  default,  and  afterwards  came  in  and 
asked  to  have  it  set  aside  on  the  gi'ound  of  the  fraudulent 
manner  in  which  service  was  obtained,  the  court  held  that 
his  objection  came  too  late.  It  should  have  been  raised  on 
the  return  of  the  summons.'  Defects  in  regard  to  service 
of  process,  as  well  as  an}^  other  steps  taken  to  obtain  juris- 
diction of  the  party,  may  be  waived  by  voluntary  appear- 
ance,* but  not  by  special  appearance,  for  the  purpose  of 
raising  the  objection  to  the  process."  There  must  be  some 
act  done  or  word  spoken  in  court  in  connection  with  the 
case.® 

§  1359.  Suiiday  or  Legal  Holiday. —  Service  of  process 
on  Sunday  or  upon  a  legal  holiday  is  clearly  irregular,  and 
may  be  pleaded  in  abatement  or  set  aside  on  motion.  But 
when  the  case  has  been  allowed  to  go  to  judgment  by  de- 
fault, on  such  irregular  service,  the  judgment  will  neither 
be  held  void  nor  reversible  on  account  of  the  irregularity.'' 

"Dungan  v.  Miller,  37  N.  J.  L.,  182;  Huddeson  v.  Prizer,  9  Pliila.,  65. 

2  Baker  v.  Wales,  45  How.  Pr.,  137;  S.  C,  14  Abb.  Pr.  (N.  S.),  331; 
LagraA-e's  Case,  id.,  334;  Carpenter  v.  Spooner,  2  Sandf.,  717;  Hevener 
V.  Heist,  9  Phila.,  274. 

3  Marsh's  Adm'rs  v.  Ba.st,  41  Mo.,  493. 

*  Stewart  v.  Hibernia  Banking  Association,  78  111.,  596;  People  v.  Bur- 
ton, 65  N.  Y.,  452. 
5  Simcock  v.  Fii-st  National  Bank  of  Emporia,  14  Kan.,  529, 
6Rhoades  v.  Delaney,  50  Ind.,  468;  Steiubach  v.  Lesse,  27  Cal.,  295. 
7  Comer  v.  Jackson,  50  Ala.,  384. 


676  PKACTICE   AND   PLEADING. 

§  1360.  Reference  to  Other  Chapters. —  Defects  most 
frequently  occur  in  the  constructive  service  of  process,  espe- 
cially when  it  is  by  publication  in  a  newspaper.  Many 
instances  of  defective  service  also  arise  in  notifying  parties, 
to  bills  and  notes  of  the  dishonor  of  such  paper.  The  suf- 
ficiency or  insufficiency  of  the  service  of  original  process 
and  other  notices  used  in  practice  will  necessarily  be  ren- 
dered manifest  by  the  return  of  the  ofiicer  or  other  person 
by  whom  the  service  is  made,  and  will  accordingly  be  con- 
sidered in  the  next  succeeding  part  of  this  chapter.  To 
avoid  useless  repetition  and  reiteration  of  authorities,  the 
reader  is  referred  to  the  chapters  and  parts  of  chapters 
where  those  topics  are  separately  treated.^ 

iSee  ch.  I,  part  11;  ch.  XI ;  ch,   X,  part  IV;  fiost,  part  vm. 


THE   KETUEN.  677 


YIII.  The  Eetukn. 

§  1361.  General  Eemarks. 

1362.  Nature  and  Purpose  of  Return  —  Foim  and  Sufficiency. 

1363.  When  Name  of  Officer  Not  Used. 
'           1364.  Wlien  Service  Without  the  State. 

1365.  Should  Show  Compliance  with  Statute. 

1366.  To  the  Pi-oper  Term. 

1367.  Contents  of  Retirrn. 

1368.  Further  Hlustration. 

1369.  Immaterial  En-ors. 

1370.  Defects  Cured  by  Recital  in  Judgment. 

1371.  Judgment  by  Default  on  Insufficient  Return,  Void. 

1372.  Examples  of  Defect  Fatal  to  Judgment. 

1373.  Return  Contradicted  by  Record. 

1374.  Examples  of  Defective  Returns. 

1375.  What  Deemed  Sufficient. 

1376.  When  Served  on  Officer  of  Corporation. 

1377.  Inference  from  General  Language  of  Return. 

1378.  Return  Cannot  be  Contradicted. 

1379.  Exceptions  to  Above. 

1380.  Presumptions  in  Favor  of  Return.  > 

1381.  May  be  Amended. 

1382.  Aided  by  Presumption. 

1383.  Aided  by  Parol  Evidence. 

1384.  Aided  by  Contents  of  Bill. 

1385.  Conflicting  Views  as  to  Impeaching  Return. 

§  1361.  General  Remarks. —  The  importance  of  there- 
turn,  by  which  the  sufficiency  of  the  service  is  usually  tested, 
is  second  only  in  importance  to  the  service  itself.  Being  a 
ministerial  duty  which  frequently  devolves  upon  an  igno- 
rant, irresponsible  deputy,  its  careless  execution  is  often 
fruitful  of  vexatious  and  expensive  delays  in  the  adminis- 
tration of  justice,  and  where  it  accurately  recites  an  ante- 
cedent failure  of  duty  in  not  properly  serving  the  process, 
may  drive  the  party  injured  by  the  neglect  to  further  liti- 
gation, in  order  to  recover  the  ground  lost  through  official 
negligence  or  incapacity. 

§1362.  Nature  and  Purpose  of  Return  —  Form  and 
Sufficiency. —  The  object  and  purpose  of  the  return  is  to 


078  PKACTICE   AND   PLEADING. 

prove  the  service  of  the  paper  returned.  The  return  should 
be  in  writing;  but,  as  will  be  seen  in  another  place,  this  is 
not  an  inflexible  rule.^  When  written,  it  must  be  signed  by 
the  person  maldng  the  service,  and  if  by  a  deputy  should 
be  in  the  name  of  the  officer  for  whom  he  acts,  by  the 
deputy ;  for  the  law  does  not  recognize,  nor  the  courts  take 
notice  of,  the  acts  of  a  deputy  sheriff,  marshal  or  constable, 
except  as  the  acts  of  his  superior.-  And  where  the  record, 
after  judgment,  showed  a  return  of  original  process,  made 
in  the  name  of  the  deputy  instead  of  the  sheriff  himself, 
the  judgment  was  declared  void.^  When,  however,  the 
service  is  within  the  county,  by  the  sheriff,  in  signing  the 
same  it  is  not  necessary  that  his  name  and  title  should  be 
followed  by  the  name  of  the  county  within  which  he  acts 
officially.  The  court  will  be  presumed  to  know  its  own 
officers.* 

§  1363.  When  Name  of  Officer  Not  Used.— This  rule, 
however,  applies  only  to  deputies  Avho  act  for  and  under  the 
directions  of  a  duly  commissioned  officer.  When,  to  meet 
an  emergency,  it  becomes  necessary  for  the  court  to  appoint 
a  special  deputy  or  elisor^  the  necessity  for  the  employment 
of  the  regular  officers  name  ceases,  and  the  return  is  made 
m  the  name  of  the  special  officer,  by  whom  the  notice  is 
served.^  When,  as  is  frequently  the  case,  the  notice  is 
served  by  a  person  who  acts  in  no  official  capacity  what- 
ever, but  performs  the  functions  of  an  officer  in  serving 
notice,  at  the  request  of  one  of  the  parties,  it  is  necessary 
that  the  return  should  be  verified  by  his  affidavit,  and  such 
affidavit  should  accompany  the  return.^  And  when  a  return 
so  verified  is  filed  with  the  clerk  of  the  court,  it  is  so  favor- 
ably regarded  that  it  will,  at  least,  be  held  to  satisfactorily 

1  See  posf,  §1383. 

2Bolar(l  V.  Mason,  66  Pa.  St.,  138. 

3 Rowley  v.  Howard,  23  Cal.,  401. 

< Chittenden  v.  Hobbs,  9  Iowa,  417;  Davis  v.  Burt,  7  id.,  56. 

6Glencoe  v.  People,  78  lU.,  383. 

eOiffee  v.  Gates,  28  Ark.,  43;  State  Bank  v.  Marsh,  10  Axk.,  139. 


THE   KETUEN.  679 

establish  the  fact  of  service,  until  the  same  is  denied  in  an 
equally  solemn  manner,  though  such  sworn  return  may  be 
lost  or  mislaid  by  the  clerk.  ^ 

§  1361.  When  Service  Without  the  State.— When 
there  is  personal  service  of  notice  outside  of  the  state  from 
whose  court  the  same  issues,  the  return  should  be  verified ; 
for  the  reason  that,  by  whomsoever  the  paper  is  served, 
whether  an  officer  or  a  private  person,  it  must  be  regarded 
where  the  notice  is  returnable  as  an  unofficial  act.  If  the 
service  is  by  the  sheriff  of  the  court,  it  cannot  be  proved  by 
his  unsworn  certificate,  because  the  act  was  performed  vvdiere 
his  official  character  was  not  recognized.  And  if  it  be 
served  by  any  other  sheriff  or  officer,  who  is  not  an  officer 
of  the  court,  verification  is  necessary,  because  the  service  is 
by  one  who  is  unknown  in  the  coart  where  his  certificate  is 
offered.- 

§  1365.  Should  Show  Compliance  with  Statute. — 
Where  jurisdiction  depends  upon  the  service  of  notice,  it  is 
necessary  that  the  statute  by  which  the  proceeding  is  au- 
thorized should  be  closely  followed,  and  that  the  return 
should  show  a  substantial  compliance  with  its  requirements, 
in  all  essential  particulars.'^  The  time  of  service  should  be 
correctly  stated,  and  where  a  return  stated  that  the  notice 
had  been  served  at  "  11  M.,"  it  w^as  held  defective  and  the 
service  to  be  set  aside  on  motion  made  for  that  purpose.* 

§1366.  To  the  Proper  Term. —  The  original  process 
when  served  should  be  returned  to  the  proper  term ;  but  if 
the  time  of  holding  the  court  be  changed  by  statute  after 

1  Estate  of  Robinson,  6  Mich.,  137.  The  service  of  notice  of  appeal 
may  be  proven  by  aflSdavit  in  the  appellate  court.  It  has  been  held  of 
no  consequence  that  the  record  failed  to  show  service  of  such  notice, 
when  it  was  supported  by  the  affidavit  of  the  person  serving  the  same. 
Mendioca  v.  Orr,  16  Cal.,  368. 

2  It  should  appear  by  the  return  that  the  service  was  had  at  a  place 
within  the  limits  prescribed  in  the  act.  Fisher  v.  Fredericks,  83  Mo., 
613. 

3 Bendy  v.  Boyce,  37  Tex.,  443. 

*  Hodges  V.  Brett,  4  Green  (la.),  345;  Milbourn  v.  Fouts,  id.,  346. 


680  PKACTICE   AND   PLEADING. 

the  issuance  of  the  summons,  without  requiring  such  writs 
to  be  returned  for  correction,  they  should  be  returned  to  the 
next  subsequent  term.'  Unless  the  return  day  is  changed 
by  statute,  it  remains  as  fixed  by  law.  Any  alteration  made 
by  the  court  or  clerk  will  not  authorize  a  return  at  a  differ- 
ent time  than  that  prescribed.- 

§  1367.  Contents  of  Return. —  What  the  written  return 
should  contain  depends  of  course  upon  the  manner  and 
mode  of  service ;  but  whatever  mode  is  adopted,  the  return 
should  state  the  facts  in  detail.  It  is  not  sufficient  to  em- 
ploy the  word  "  due  "  to  express  to  the  satisfaction  of  the 
court  that  the  duty  has  been  properly  executed.  "  Due 
service,"  and  "  duly  served,"  when  used  in  the  return  of 
legal  process,  mean  nothing,  because  they  come  from  an  offi- 
cer not  supposed  to  use  them  advisedly,  as  they  are  expressive 
of  a  conclusion  of  law.  The  sheriff,  when  he  returns  that 
the  paper  has  been  duly  served,  assumes  the  province  of  the 
court  in  attempting  to  determine  what  amounts  to  valid 
service.  The  manner  of  serving  the  process  sliould  be 
described  so  that  the  court  may  be  able  to  judge  of  its  suffi- 
ciency.^ A  return  which  undertook  to  state  all  the  neces- 
sary facts  in  the  single  word  "  executed,"  was  held  insuffi- 
cient.* But  it  was  held  in  one  case  that  the  words  "  Keceived 
in  office,  August  22,  ISTO,"  and  "Executed  August  22, 1870," 
followed  by  the  sheriff's  name  and  title,  and  copied  into  the 
transcript  immediately  after  the  summons  and  complaint,  in 
the  absence  of  objections  in  the  trial  court,  showed  a  suffi- 
cient service  which  could  not  be  questioned  after  judgment 
by  default.'^  This  case  is  certainly  not  in  harmony  with 
the  majority  of  those  where  the  same  question  is  considered, 
for  the  reason  that  the  return  does  not  recite  facts  sufficient 
to  enable  the  com-t  to  judge  of  the  sufficiency  of  the  serv- 

1  Freeman  v.  Thompson,  53  Mo.,  183. 
-Crowell  V.  Galloway,  3  Neb.,  315. 
SBotsford  V.  O'Connor,  57  111.,  72. 
*Merritt  v.  White,  37  Miss.,  438. 
^Lenoii-  v.  Broadhead,  50  Ala.,  58. 


THE    RETURN.  C81 

ice.  However,  another  case  from  the  same  com't  is  scarcely 
less  at  variance  with  the  current  of  authority.^  There  it 
was  decided  that  a  subpoena  issuing  out  of  a  court  of  chan- 
cery, directed  to  all  the  defendants,  and  returned  "Executed 
on  the  parties,  this  October  1,  1S70,  with  copy,"  suiEciently 
showed  a  proper  service  of  the  process. 

§  1368.  Furtlier  Illustration. —  The  recital  on  a  re- 
turn —  "  Executed  by  delivering  a  true  copy,"  with  the  date, 
is  certainly  fuller  and  more  complete  in  its  recitals  than 
either  of  the  two  foregoing,  and  yet  this  was  held  insuffi- 
cient.- But  where  the  return  was  in  the  words  following : 
"  Executed  on  the  within-named  J.  J.  M.  this  October  12, 
1870,  by  ijersonal  service ;  co])y  waived ; " '  or,  "  Executed 
31st  March,  1859,  by  delivering  to  the  defendant  a  true 
cop}'^  of  this  writ,  together  with  the  certified  copy  of  peti- 
tion,"'* in  both  these  cases  it  was  held  to  be  sufficient, 
becausis  there  was  such  a  description  of  the  manner  of  ex- 
ecuting the  process  that  the  court  was  enabled  to  determine 
whether  the  defendant  had  been  proiDcrly  served. 

§  1369.  Immaterial  Errors. —  A  trifling  variance,  such 
as  is  not  calculated  to  mislead,  between  the  writ  and  the 
return,  would  not  be  sufficient  to  vitiate  the  latter.  As 
where  the  original  notice  was  against  "  Luther  Burt,"  and 
the  return  was  of  service  on  "  L.  Burt,"  the  difference  was 
held  immaterial.^ 

§  1370.  Defects  Cured  by  Recital  in  Judgment. —  It  has 
been  held  that  a  recital  in  the  judgment  or  decree,  of  due 
service  of  process  upon  the  defendant,  is  sufficient  to  cure 
all  defects  in  the  service  and  return,  of  which  advantage 
was  not  taken  at  or  before  the  trial,  by  objecting  to  the 
irregularity.^    In  other  Avords,  that  the  judgments  cannot 

'Florence  v.  Paschal,  50  Ala.,  28. 
2  Woodliff e  V.  Connor,  45  Miss. ,  553. 
3 Milam  v.  Strickland,  45  Miss.,  721. 
*Hill  V.  Grant,  33  Tex.,  132. 

5  Davis  V.  Burt,  7  Iowa,  5G ;  Johnson  v.  Jones,  2  Neb.,  126. 

6  Morrow  v.  Wee  J,  4  Iowa,  77,  87,  and  cases  cited. 


682  PRACTICE    AND    PLEAd'iNG. 

be  attacked  collaterally,  on  account  of  irregularity  in  the 
process,  provided  it  appeared  from  the  record  that  any 
process  at  all  had  been  served.  This  doctrine,  which  seems 
to  be  evolved  by  a  sort  of  circular  reasoning,  where  prem- 
ises and  conclusion  are  constantly  changing  places,  is 
maintained  in  the  interest  of  the  finahty  of  judgments.  It 
is  said  that  the  record  shows  due  service,  and  even  though 
the  judgment  was  by  default,  the  presumption  is  that  the 
question  of  service  and  return  of  process  were  submitted  to 
the  court  and  passed  upon.  The  record  declares  that  the 
defendant  Avas  properly  served.  Consequently,  that  fact 
cannot  be  collaterally  denied.  But  the  jurisdiction  of  the 
court  to  make  a  record  in  the  case  depends  upon  the  service 
of  process.  This  requirement  is  met  by  the  assertion  tliat 
jurisdiction  is  shown  by  the  record.  So  the  service  of 
process  makes  the  record,  and  when  this  fails,  the  record 
may  make  itself  by  assuming  the  facts  upon  which  its  ex- 
istence depends.  The  court  has  no  jurisdiction  to  hear  and 
determine  the  issues  between  parties  litigant  until  the  de- 
fendant has  been  duly  served  with  process ;  yet,  without 
due  process,  the  court  may  decide,  as  a  matter  of  fact,  that 
process  has  been  duly  served,  and  upon  the  jurisdiction  thus 
assumed  render  judgment  against  defendant,  of  Avhich  he 
has  no  notice,  and  consequently  cannot  appear  and  attack 
it  by  a  direct  proceeding  until,  perhaps,  it  is  too  late.  This 
is  the  unfortunate  position  the  defendant  would  occupy  in 
a  case  where  the  service  was  otherwise  than  strictly  per- 
sonal, and  the  return  correctly  stated  the  manner  in  which 
the  process  was  served. 

§  1371.  Judgment  by  Default  on  Insufficient  Return, 
Toid. —  Jurisdiction  has  been  fairly  described  as  the  power 
of  the  court  to  act  upon  a  given  state  of  facts,  and  when 
such  facts  are  properly  alleged  before  it,  and  the  farties  are 
properly  notified,  to  decide  whether  they  exist;  and  the 
judgment  upon  them  is  conclusive  until  reversed  by  a  direct 
proceeding.^     But  when  any  other  mode  of  obtaining  juris- 

iWanzer  v.  Howlaiid.  10  Wis..  8.  16. 


THE   RETURN.  683 

diction  of  the  person  is  substituted  for  personal  service,  the 
statutory  method  must  not  only  be  followed  in  every  essen- 
tial particular,  but,  unless  the  return  affirmatively  shows 
this,  any  judgment  rendered  against  the  defendant  by  default 
should  be  treated  as  a  nullity.^  So,  where  a  rule  of  court, 
having  the  force  of  a  statute,  required  the  return  to  show 
that  a  copy  of  the  summons  was  delivered  to  the  defend- 
ant, or,  in  case  of  Ms  absence,  was  left  with  a  member  of 
his  family,  etc.,  it  w^as  held  that,  before  a  service  made  by 
leaving  a  copy  of  the  summons  with  any  one  else  than  the 
defendant  himself  could  be  held  valid,  it  must  affirmatively 
appear  from  the  return  that  the  person  serving  the  process 
could  not  find  the  defendant.'- 

§  1372.  Example  of  Detect  Fatal  to  Judgment. —  In 
order  to  sustain  a  judgment  jpro  confesso^  the  return  of 
process,  served  by  leaving  a  copy  with  another  person,  must 
show  that  the  officer  informed  the  person  with  whom  the 
copy  w-as  left  of  the  contents  thereof.^  The  return  should 
also  show  the  ])lace  where  the  service  Avas  made,  and  in  case 
of  judgment  by  default,  an  omission  in  this  respect  will  not 
be  supplied  by  any  legal  presumptions  in  favor  of  jurisdic- 
tion/ In  the  case  of  Pollard  v.  Wegener,^  the  importance 
of  the  return  as  a  part  of  the  record  is  fairly  illustrated, 
and  the  doctrine  of  the  nullity  of  judgments  founded  upon 
insufficient  service  is  abl}''  maintained.  In  that  case  the 
governing  statute  required  that  every  subpoena  or  process 
for  appearance  should  be  served  by  giving  the  defendant 
"  a  copy  thereof,  or  by  leaving  a  copy  thereof  at  the  dwell- 
ing-house or  usual  place  of  abode  of  the  defendant,  with 

1  Pollard  V.  Wegener,  13  Wis.,  569;  Kjiox  v.  Miller,  18  Wis.,  397;  Rape 
V.  Heaton,  9  Wis.,  328. 

2  Matteson  v.  Smith,  37  Wis.,  333 ;  Nortlu-up  v.  Shepbard,  23  Wis.,  513. 

3  Tompkins  v.  Wiltberger,  56  111.,  385. 

<Sayles  v.  Davis,  20  Wis.,  302.  The  service  being  by  one  not  an  offi- 
cer of  the  court,  the  return  was  held  defective  for  not  stating  that  coi^y 
was  left  at  a  place  within  the  jurisdiction.  See,  also,  Pigott  v.  SneU, 
59  111.,  106. 

^  Supra,  §  1371. 


C84:  PKACTICE    AND   PLEADING. 

some  person  of  the  age  of  ten  years  or  upwards,  to  whom 
the  nature  of  such  process  shall  be  explained,"     The  record 
of  a  suit  for  divorce,  the  decree  in  which  was  collaterally 
called  in  question,  recited  that,  "  It  further  appearing  that 
said  subpoena  was  duly  served  upon  said  defendant  by  the 
sheriff  of  said  county  more  than  ten  days  before  the  return 
day  thereof,"  etc.     The  return  of  the  officer  was,  as  ap- 
peared by  the  record,  in  the  following  words :  "  I  hereby  cer- 
tify that  I  duly  served  the  within  subpoena  by  leaving  a  true 
copy  thereof  at  the  defendant's  last  and  usual  place  of  res- 
idence, in  said  count}^,  this  — ,"  etc.     The  return  failed  to 
state  either  that  the  copy  was  left  with  a  person  of  the  pre- 
scribed age,  or  that  the  contents  of  the  copj'  were  explained 
to  the  person  with  whom  the  same  was  left ;  both  of  which 
were  important  requirements.^     There  was  no  appearance 
in  response  to  the  subpoena,  and  a  decree  was  rendered  for 
plaintiff,  dissolving  the  bonds  of  matrimony  and  directing 
defendant  to  reconvey  to  plaintiff  certain  real  estate  con- 
veyed by  plaintiff  to  her  in  consideration  of  the  marriage. 
It  was  the  latter  part  of  the  decree  that  was  questioned  in 
the  case  cited,  which  was  an  action  of  ejectment  between 
the  divorced  wife  and  the  grantee  of  the  husband,  who 
claimed  title  under  the  decree.     Dixon,  J.,  in  rendering  the 
opinion,   said,   referring   to   the   earlier   case    of   Eape  -y. 
Heaton:  ^     "  The  broad  and  rational  doctrine  that  we  may, 
in  all  cases  where  a  decree  or  judgment  is  relied  ujDon  as 
the  foundation  of  a  legal  right,  inquire  into  the  facts  which 
by  law  are  made  necessary  to  the  jurisdiction  of  the  court 
or  tribunal  by  which  it  was  pronounced,  and  if  it  ajjpears 
that  such  facts  did  not  exist,  disregard  such  decree  or  judg- 
ment as  unauthorized  and  void,  is  there  asserted,  and,  as  we 
think,  maintained  by  a  process  of  reasoning  which  cannot 
well  be  answered.     *     *     *     Hence,  the  recitals  contained 
in  the  record  before  us,  that  the  plaintiff  in  error  was  duly 
served  with  process  of  subpoena  in  the  action  for  a  divorce, 

1  Hendley  v.  Baccus,  33  Tex.,  338;  Vandiver  v.  Roberts,  4  W.  Va.,  493. 
^  Supra,  §  1371. 


THE    KETURN.  685 

are  not  now,  and  could  not,  if  the  record  were  silent  as  to 
the  manner  of  the  attempted  service,  be  conclusive  of  the 
fact  that  she  was  so  served.  For  until  the  court,  by  a 
proper  ser\'ice  of  process,  had  jurisdiction  of  her  person,  it 
was  powerless  to  bind  or  conclude  her  upon  that  or  any 
question  which  might  arise  in  the  action."  ^ 

§  1373.  Return  Contradicted  hj  Record. —  In  this  case, 
the  record  invoked  in  support  of  the  title  of  the  husband's 
grantee  bore  upon  its  face  the  evidence  of  its  own  defi- 
ciency. Its  recital  of  due  "  service  "  was  flatly  contradicted 
by  that  portion  of  the  same  record  where  the  return  was 
set  out ;  but  the  court  goes  farther  in  declaring  the  rule, 
that  even  when  the  record  does  not  disclose  the  manner  of 
service,  it  may  be  otherwise  shown,  and  the  judgment 
thereby  invalidated. 

§  1374.  Examples  of  Defective  Returns. —  Where  the 
lano-uao^e  of  the  return  was  that  there  was  "  delivered."  etc., 
"  a  copy  of  this  writ,  and  a  copy  of  the  petition,"  without 
stating  what  petition,  the  return  was  held  insufficient-  So 
where  it  merely  shows  that  the  copy  was  left  at  a  particular 
place,  without  stating  to  whom  the  same  was  delivered.* 
And  where  it  was  expressed  in  the  following  words :  "  Exe- 
cuted by  personal  service;  or,  executed  on  defendant  in 
jjerson,"  the  return  was  held  defective  for  not  showing  the 
delivery  of  copies  as  required  by  statute.* 

§  1375.  What  Deemed  SuflScient. —  Where  the  statute 
required  the  service  of  process,  by  leaving  a  copy  thereof 
posted  at  the  front  door  of  defendant's  usual  place  of  abode, 
it  was  held  that  the  return  must  not  only  state  that  a  copy 
was  posted  at  such  front  door,  but  that  it  was  left  posted 
there.^    But  where  the  language  of  the  return  was  "  exe- 

J  PoUard  v.  Wegener,  13  Wis.,  572-78. 
2Tullis  V.  Scott,  38  Tex.,  537. 

3  Melvin  v.  Clark,  45  Ala.,  285.  See,  also,  Rankin  v.  Dulaney,  43  Miss., 
197. 

4  York  V.  Crawford,  42  Miss.,  508;  Davis  v.  Patty,  id.,  509. 
6  Lewis  V.  Botkin,  4  W.  Va.,  533. 


QS6  PRACTICE    AND    PLEADING. 

cuted  personally  with  original  and  copy,  defendant  claiming 
such,"  it  was  held  sufficient.'  So,  also,  where  the  return 
Avas  in  the  words,  "  delivered  a  copy  to  defendant  in  per- 
son." -  In  brief,  what  is  required  of  the  return  is,  that  it 
shall  contain  a  trnie  and  full  recital  of  the  acts  of  the  officer 
done  and  performed  in  serving  the  process.  The  order  in 
Avhich  the  facts  are  stated  is  immaterial,  provided  every- 
thing requisite  appears  in  the  return.  Whatever  is  omitted 
therefrom  will  be  presumed  not  to  have  been  done  by  the 
officer,  in  making  the  service.^ 

§  1376.  When  Served  on  Officer  of  Corporation.— 
When  the  adverse  party  to  the  proceeding  is  a  corporation, 
the  return  should  state  the  name  of  the  officer  upon  whom 
the  service  was  made.  It  will  not  be  sufficient  if  it  merely 
recites  that  the  corporation  was  served.^  But  when  the 
proper  officer  of  a  corporation  to  be  served  was  the  presi- 
dent, and  the  return  recited  that  the  cashier  was  served 
instead,  and  as  an  excuse  for  the  substitution  stated  that  the 
president  was  not  to  be  found  in  the  county  where  the  suit 
was  brought,  such  return  was  held  to  be  sufficient  evidence 
of  proper  service.* 

§  1377.  Inference  from  (general  Langnage  of  Retnrn. — 
Where  the  return  of  service  in  a  case  arising  under  the 
chancery  practice  was  in  the  words,  "  Served  the  within 
jiamed  by  leaving  a  true  copy  with  the  within  named," 
there  being  several  persons  mentioned  in  the  subpoena  who 
were  to  be  served,  it  was  held  that  the  court  would  infer 
from  the  language  used  in  the  return  that  a  copy  was  de- 
livered to  each  of  the  defendants  mentioned  in  the  process.^ 

§  1378.  Return  Cannot  be  Contradicted. —  In  general, 
the  return  of  the  officer  cannot  be  contradicted  by  the  par- 

1  Presley  v.  Anderson,  42  Miss. ,  274. 

2  Carter  v.  Daizy,  42  Miss.,  501. 

3  Mitchell  V.  Greenwald,  43  Miss.,  167;  Moore  v.  Coats,  id.,  225;  Naron 
V.  Gwin,  id.,  346;  Rankin  v.  Dulaney,  43  Miss..  197. 

■* Grand  Tower  Mining,  etc.,  Co.  v.  Scliirmer,  64  111.,  106. 
5  Reed  v.  Tyler,  56  111.,  288. 
fiGreenman  v.  Harvey,  53  111.,  386. 


THE    RETURN.  687 

ties.  As  it  is  made,  it  will  be  held,  in  most  cases,  as  con- 
clusive upon  both  plaintiff  and  defendant  until  amended.' 
At  least,  it  is  held  that  it  cannot  be  collaterally  impeached, 
but  resort  must  be  had  to  a  direct  proceeding  for  that  pur- 
pose.- 

§  1379.  Exception  to  Above. —  However,  in  one  case 
where  the  return  showed  due  service  by  leaving  a  copy  of 
the  summons,  etc.,  at  the  usual  place  of  abode  of  defend- 
ant, when,  in  fact,  such  process  was  left  at  the  residence  of 
his  father,  and  defendant  heard  of  the  judgment  against 
him  only  at  the  next  succeeding  term,  when  he  moved  to 
have  it  vacated;  upon  proving  that  he  had  not  received 
notice  of  the  suit  until  after  judgment,  it  was  held  that  such 
judgment  should  have  been  vacated.'  And  in  another  case, 
where  the  return  was  called  in  question,  it  was  held  that 
the  court  might  hear  evidence,  and  decide  whether  or  not 
the  place  at  which  the  service  was  made  was  defendant's 
residence.*  So,  where  suit  was  brought  on  a  judgment  ren- 
dered in  the  court  of  a  foreign  state,  and  the  return  recited 
that  the  defendant  Avas  personally  served  with  process,  it 
was  held  that  the  defendant  might  show,  in  direct  contra- 
diction of  the  record,  that  he  was  not  so  served,  and 
thereby  invaUdate  the  judgment  upon  which  the  suit  Avas 
brought.^ 

§  1380.  Presumptions  in  Fayor  of  Beturn. —  But  the 
recital  in  the  officer's  return,  that  the  summons  was  person- 
ally served,  makes  more  than  a  mere  jyr'ima  facie  case  in 
favor  of  the  validity  of  a  judgment  rendered  in  pursuance 
thereof.  The  presumptions  in  favor  of  its  correctness  are  so 
great  that  it  requires  the  strongest  kind  of  emdence  to  over- 
come the  effect  of  the  simple  statement  in  the  return,  show- 

iRowell  V.  Klein,  44  Ind.,  290;  Johnson  v.  Jones,  2  Neb.,  126. 

2  Mueller  v.  Bates,  2  Disney  (Ohio),  318. 

3  Dasher  v.  Dasher,  47  Ga.,  320. 

4  Bond  V.  Wilson,  8  Kan.,  228. 

sKnowles  v.  Gaslight  &  Coke  Co.,  19  "Wall.,  58;  Thompson  v.  Whit- 
man, 18  WaU.,  457. 


688  '  PKACTICE   AND    PLEADING. 

ing  good  personal  service.  It  is  not  subject  to  rebuttal  by 
the  same  evidence  as  any  statement  of  a  witness,  or  allega- 
tion in  the  pleadings.^ 

§  1381.  May  l)e  Amended. —  "Where  anything  is  by  mis- 
take or  inadvertence  omitted  from  the  return,  which  is 
essential  to  give  binding  force  to  the  judgment,  it  may  be 
supplied  by  amendment.^  And  such  amendment  may  be 
made  in  order  to  make  the  return  consistent  with  the  facts, 
even  after  the  expiration  of  his  term  of  office.'  jSTeither  is 
the  power  of  amendment  limited  to  the  time  before  the 
rendition  of  judgment,  but  the  return  may  be  so  amended 
as  to  conform  to  the  facts,  afterwards.'*  Permission,  w^hen 
granted,  to  amend  the  return  on  a  notice,  does  not  go  to  the 
extent  of  authorizing  the  officer  to  alter  or  amend  the 
notice  itself.  As  where  it  was  a  notice  of  motion  with  a 
blank  space  left  therein  for  the  day  of  the  next  term  on 
which  the  motion  would  be  made,  and  for  the  name  of  the 
mover,  these  blanks  could  not  be  filled  on  pretense  of 
amending  the  return.^  It  may  be  proper  to  remark  that 
notice  of  the  application  to  amend  a  return  is  generally  re- 
quired. Not  so,  however,  when  both  parties,  or  their  attor- 
neys, are  present  in  court  when  the  application  is  made.^ 

§  1382.  Aided  hj  Presumption. —  The  return  of  service 
of  notices,  and  even  of  original  process,  may  be  aided  in 
divers  ways  besides  amendment,  when  upon  its  face  it  does 
not  appear  sufficient  to  warrant  the  proceeding  noticed.  An 
instance  of  this  kind  is  where,  in  a  suit  pending  in  the 
United  States  court  against  a  corporation,  which  might, 
under  authority  of  an  act  of  congress,  be  served  through 
one  of  its  directors,  and  it  appeared  from  the  return  only 
that  the  marshal  had  served  the  process  upon  S.,  "  reported 

^DavanttJ.  Carleton,  53  Ga.,  491;  Starkweather  v.  Morgan,  15  Kan., 
274. 
2  Toledo,  etc.,  R.  E.  Co.  v.  Butler,  53  lU.,  323. 
3McClure  v.  Wells,  46  Mo.,  311. 
4Kii-kwoocl  V.  Reedy,  10  Kan.,  453. 

5  White  V.  Sydenstricker,  6  W.  Va.,  46. 

6  National  Insurance  Co.  v.  Chamber  of  Commerce,  69  HI.,  22. 


THE   KETURN.  680 

to  be  one  of  the  directors,"  etc.,  and  it  being  shown  by  the 
record,  on  error,  that  S.  was  at  a  previous  time  one  of  the 
directors,  the  court  presumed,  in  the  absence  of  evidence  to 
the  contrary,  a  continuance  of  the  rehation  of  director,  from 
the  time  shown  by  the  proof,  down  to  the  time  of  service, 
and  accordingly  overruled  the  objections  to  the  return.* 

§  1383.  Aided  by  Parol  Evidence. —  So  when  the  return 
is  lost,  the  service  may  be  proven  by  parol  evidence.-  And 
when  the  return  fails  to  state  all  the  facts  necessary  to  a 
good  and  sufficient  service,  to  prevent  a  failure  of  justice, 
the  service  has  been  pennitted  to  be  shown  in  any  other 
manner  to  the  satisfaction  of  the  court.^ 

§  1384.  Aided  by  Contents  of  Bill.—  So  also,  where  the 
return  recited  that  the  process  was  "  executed  on  S.  S.,  ex- 
ecutor, Mrs.  J.  L.  S.,  executrix,  by  offering  to  each  a  copy, 
and  on  Miss  F.  R.  S.  (and  other  minors)  by  handing  each  a 
copy,"  and  it  was  necessary  that  the  guardian  of  the  minors 
should  be  served,  the  above  return  was  held  to  show  suffi- 
cient service,  it  appearing  from  the  bill  that  Mrs.  J.  L.  S. 
was  such  guardian.^ 

§  1385.  Conflicting  Tiews  as  to  Impeaching  Return. — 
It  seems  strange  that,  in  the  principal  suit,  the  return  of  the 
officer  cannot  be  questioned  or  doubted,  if  he  refuses  to 
amend,  yet  after  judgment,  the  entire  judicial  proceeding, 
which  is  based  upon  such  return,  may  in  defense  to  an  ac- 
tion thereon,  or  by  motion  to  set  aside,  be  utterly  over- 
thrown and  invalidated,  by  showing  the  falsity  of  its  recitals. 
This  is  the  rule,  however,  which  seems  to  be  established  by 
judicial  decisions.'* 

1  Railroad  Company  v.  Brown,  17  Wall.,  445. 

2  Bridges  v.  Ai-nold,  37  Iowa,  231. 

3  Kip  V.  FuUerton,  4  IVIinn.,  473. 

<  Smith  V.  Pattison,  45  Miss.,  619. 
*  Supra,  §  13T8-9,  and  cases  cited. 
44 


690  PEACTICE    AND   PLEADING. 


IX.  Pleading. 

§  1386.  Division  of  Subject. 

1387.  Necessary  to  Aver  Notice. 

1388.  Action  on  Guaranty. 

1389.  Wlien  Notice  Unnecessary. 

1390.  When  Facts  Ai-e  Witliin  Defendant's  Knowledge. 

1391.  Knowledge  Lies  Between  the  Parties. 
1393.  When  Want  of  Notice  to  be  Averred. 

1393.  Manner  of  Alleging  Notice. 

1394.  Must  Aver  Notice  to  Proper  Party. 

1395.  Should  Show  Strict  Compliance  When  Constructive  Service. 

1396.  In  Due  Time  and  to  Proper  Person. 

1397.  Waiver  or  Excuse. 

1398.  Facts  Pleaded  According  to  Legal  Effect. 

1399.  Manner  of  Averring  Want  of  Notice. 

1400.  '  Admission  of  Notice  by  Answer. 

1401.  Consequence  of  Defective  Pleading. 

1402.  Practice  Under  the  Code. 

§  1386.  Division  of  the  Subject. —  The  first  question  for 
consideration  under  this  branch  of  our  subject  is  —  when  is 
it  necessary  to  aver  in  the  pleadings  that  notice  has  been 
given  ?  Second,  when  should  the  pleader  aver  want  of  notice  ? 
Third,  how  should  either  notice,  or  its  absence  when  neces. 
sary,  be  averred;  and  Fourth,  how  may  advantage  be  taken 
of  either  a  defective  allegation  in  this  respect,  or  an  entire 
omission  of  the  averment,  when  it  is  material  to  the  issue? 

§1387.  Necessary  to  Aver  Notice. —  The  affirmative 
allegation  devolves  upon  the  plaintiff,  when  the  event  upon 
which  the  defendant's  duty  arises  and  the  plaintiff's  right 
accrues  lies  peculiarly  within  the  knowledge  of  the  latter, 
and  the  action  does  not  lie  without  notice  given.^  As  where 
the  action  was  on  a  promise  to  pay  such  a  rate  for  certain 
wares  as  any  other  person  would  pay,  it  was  held  that  de- 
fendant was  entitled  to  notice,  before  suit,  of  the  rate 
that  another  gave,  and  the  declaration  should  have  con- 
tained an  allegation  of  such  notice.'     So  where  suit  was 


1  6  Com..  Dig.  Pleader  (C,  73). 

-  Henuing's  Case,  3  Croke,  433 ;  Harris  v.  Ferrand,  Hardres,  36. 


PLEADING.  691 

brought  on  a  contract  to  deliver  so  much  corn,  if  the  plaintiff 
approve  of  it  at  the  fair,  it  was  held  that  defendant  was 
entitled  to  notice  of  approval,  for,  until  the  corn  Tvas  ap- 
})roved,  the  contract  was  in  abe3'ance,  and  it  was  uncertain 
whether  defendant  would  be  required  to  execute  it  on  his 
part;  hence  notice  of  such  approval  should  be  averred.*  So 
also,  in  case  of  a  subscription  of  stock,  to  be  paid  when 
$5,000  had  been  raised  for  a  specified  purpose,  it  was  held 
that  notice  was  necessary  to  fix  the  liability  of  the  sub- 
scriber, as  the  circumstances  on  which  the  performance  of 
the  contract  depended  were  more  peculiarly  witliin  the 
knowledge  of  the  promisee  than  the  promisor.-  It  was  also 
decided,  where  defendant  had  agreed  to  reimburse  plaintiff 
for  the  expense  of  a  trip  to  England,  in  case  plaintiff's  sales 
of  certain  machines  did  not  amount  to  sufficient  to  defray 
the  same,  that  in  an  action  to  recover  the  amount  of  such 
expense,  notice  to  the  plaintiff  of  the  deficiency  in  the  sum 
realized  from  the  sales  of  machines  should  have  been 
averred.*  So  in  an  action  against  the  drawer  or  indorser  of 
a  negotiable  instrument,  it  is  necessary  to  allege  demand 
and  notice,  or  such  facts  as  will  excuse  notice.'' 

§1JJ88.  Action  on  Guaranty.— In  an  action  brought  on 
a  guaranty,  it  is  not  onl}^  incumbent  upon  the  plamtiff  to 
aver  notice  of  the  fact  which  fixes  the  liabilit}^  of  the  guar- 
antor, but  it  is  necessary  to  allege  notice  of  the  acceptance 
of  the  guaranty,  by  which  he  became  contingently  liable 
for  the  default  of  the  other  party .^  The  necessity  of  this 
averment  is  placed  upon  somewhat  different  grounds  from 

1  Brable  v.  Holly  well,  1  Croke,  250;  Palgrave  v.  "Wmdliam,  1  Str.,  212. 

2  Chase  v.  Sycamore  &  C,  R.  R.  Co.,  38  III.,  215. 

'Watson  V.  Walker,  23  N.  H.,  471.  For  cases  where  averment  of 
notice  is  held  unnecessary,  see  Rex  v.  Holland,  5  T.  R.,607,  Lent  v. 
Padleford,  10  Mass.,  230;  Clough  v.  Hoffman,  5  Wend.,  499;  East  v. 
Thoroughgood,  1  Croke,  834. 

^Shultz  V.  Depuy,  3  Abb.  Pr.,  252;  Harker  v.  Anderson,  21  Wend., 
372;  1  Chit.  PI.,  329,  and  cases  cited. 

SMcCoUum  V.  Cushing,  22  Ark.,  540;  Kincheloe  v.  Holmes,  7  B. 
Mon.,  5. 


692  PRACTICE    AND   PLEADING. 

that  required  in  the  cases  hereinbefore  cited ;  as  in  most  of 
those  cases,  the  notice  advised  the  obligor  of  a  liabihty  in- 
curred under  a  contract  of  which  he  already  had  notice, 
while  the  notice  to  the  guarantor  is  essential  to  complete  the 
contract  of  guaranty  itself.  The  averment  of  a  notice  of 
acceptance,  however,  is  not  all  that  is  required  in  actions  of 
this  kind.  "When  the  guarantor  is  entitled  to  notice  of  the 
principal  debtor's  failure  to  pay,  and  that  proper  efforts 
have  been  made  to  collect  the  debt  from  him,  the  declara- 
tion should  contain  proper  averments  to  this  effect,^ 

§  1389.  When  Notice  Unnecessary. —  But  an  uncondi- 
tional covenant  to  pay  immediately  on  a  failure  of  a  debtor 
to  discharge  the  obligation  at  the  time  stipulated  is  not 
such  a  guaranty  as  requires  notice.-  A  distinction  has  also 
been  drawn  between  contracts  to  guarantee  the  payment  of 
money,  or  the  performance  of  some  duty  where  the  prin- 
cipal obligation  remained  in  abeyance  until  the  acceptance 
of  the  guaranty,  and  an  unconditional  guaranty  indorsed 
upon  a  written  contract  which  was  m  itself  complete  at  the 
time,  conditioned  that  the  guarantor  should  be  bound  to 
pay  a  specific  sum  mentioned,  upon  the  failure  of  the  prin- 
cipal obligor  in  the  contract  to  faithfully  perform  its  con- 
ditions. In  suits  on  collateral  obligations  of  the  latter 
description,  it  has  been  held  that  as  the  acceptance  of  the 
principal  contract  necessarily  involved  the  acceptance  of 
the  guaranty,  notice  of  such  acceptance  was  not  requisite.^ 

§  1390.  When  Facts  Are  Within  Defendant's  Knowl- 
edge.—  Notwithstanding  the  conditional  nature  of  the  obli- 
gation under  which  defendant's  indebtedness  accrues,  if  the 
facts  and  circumstances  upon  which  his  liability  to  plaintiff 
depends  are  as  much  within  his  knowledge  as  that  of  the 

1  Sylvester  v.  Downer,  18  Vt.,  32;  Bebee  v.  Moore,  3  McLean,  387; 
ante,  §  390  et  seq. 

2  WilUams  v.  Springs,  7  Iredell,  384 ;  Kemble  v.  Wallis,  10  Wend.,  374 ; 
Williams  v.  Granger,  4  Day,  444;  ante,  ch.VII,  part  11. 

3 Davis  Sewing  Machine  Co.  v.  Jones,  61  Mo.,  409;  ante,  ch.VII, 
part  n. 


PLEADING.  693 

plaintiff,  or  he  has  the  means  of  informing  himself  in  re- 
gard to  such  facts  and  circumstances  from  a  definite  known 
source,  other  than  by  information  from  the  plamtiff,  he  is 
not  entitled  to  claim  notice  from  the  plaintiff,*  and  conse- 
quently, in  such  case,  an  averment  of  notice  would  be  un- 
necessary. As  when  the  obligor  assumes  to  pay  when  A. 
marries,  returns  into  the  kingdom,  or  performs  a  certain 
journey.  Here  the  liability  depends  upon  the  act  of  a  third 
party,  which  lies  in  the  defendant's  cognizance  as  well  as 
the  plaintiff's,  and  he  is  bound  to  take  notice  at  his  peril.^ 
So  if  he  assumes  to  pay  so  much  as  A.  shall  name ;  to  pay 
if  A.  does  not  pay ;  or  to  pay  so  much  for  every  acre  above 
twenty,  where  A.  measures  them,  it  has  been  held  that  no- 
tice w^ould  not  be  required  before  suit.'  So,  also,  in  an  action 
for  services  rendered,  it  is  never  deemed  necessary  to  give 
notice  to  defendant  of  the  rendition  of  such  services.* 

§1391.  Knowledge  Lies  Between  the  Parties. —  When 
the  cause  of  action  arises  upon  the  performance  of  some  act 
alleged  to  have  taken  place  between  the  parties  themselves, 
there  is  the  strongest  reason  for  dispensing  with  notice  from 
the  obligee  to  the  obligor.  As  where  the  action  was  debt 
for  freight,  on  a  charter-party,  and  the  goods  were  obliged 
to  have  been  delivered  to  the  defendant  himself,  it  was  held 
that  plaintiff  need  not  aver  notice  of  the  delivery.* 

§  1392.  When  Want  of  Notice  to  be  Averred.— It  will 
probably  be  sufficient  to  state  that  the  want  of  notice 
should  be  pleaded  in  every  proper  case  in  which  it  is  omit- 
ted and  the  declaration  does  not  show  upon  its  face  that 
notice  was  necessary.  To  undertake  to  illustrate  by  exam- 
ples what  are  proffer  cases,  would  merely  be  to  go  over  the 
ground  already  traversed  in  endeavoring  to   show  when 

iLamphere  v.  Co  wen,  43  Vt.,  175;  Dix  v.  Flanders,  1  N.  H.,  246; 
Hobart  v.  Hilliard,  11  Pick.,  143, 
^Com.  Dig.  Pleader,  C,  75;  Normanvill  v.  Pope,  2  Cro.,  137. 
3Com.  Dig.  PI.,  C,  75;  Burnel  v.  Wood,  3  Roll.,  33. 
<  Wilson  V.  School  Dist.  No.  4,  32  N.  H.,  118. 
5  Dodd  V.  Atkinson,  cited  Com.  Dig.  PI.  (C,  75). 


694  PEACTICE   A:!fD   PLEADING. 

notice  should  be  averred,  and  when  its  averment  was  unnec- 
essary, 

§  1393.  Manner  of  Alleging  Notice. —  In  discussing  the 
manner  of  pleading  notice  or  want  of  notice,  it  will  be  nec- 
essary to  show  what  constitutes  a  good  and  sufficient  notice, 
for  it  is  only  by  alleging  with  reasonable  particularity  the 
facts  constituting  such  notice  as  the  case  requires,  that  the 
matter  may  be  brought  properly  before  the  court  or  jury. 
EsiDCcially  under  the  code  s\iow\.(X  facts  be  pleaded  as  contm- 
distinguished  from  conclusions  of  law.  The  pleading  would 
therefore  be  insufficient  on  its  face  if  it  merely  alleged  that 
"  lawful  notice  "  or  "■  notice  as  required  by  law  "  was  gij^en, 
without  stating  to  whom  the  same  was  given,  or  without 
alleoino:  sufficient  to  show  that  the  notice  was  reasonable  in 
point  of  time.  As  where  a  bill  of  sale  in  the  natm'e  of  a 
mortgage  was  given  with  a  stipulation  for  the  mortgagor  to 
retain  possession,  and  that  it  was  to  be  void  if  the  sum 
secured  was  paid  on  a  specified  day,  unless  the  mortgagee 
gave  notice  of  his  desire  for  earlier  payment,  when  the 
same  should  be  paid  at  the  time  for  which  the  notice  was 
given,  or  possession  was  to  be  surrendered.  I^otice  of  de- 
mand for  earlier  payment  was  alleged  as  having  been  given 
on  the  same  day  the  possession  was  demanded,  Avithout 
stating  the  hour,  and  the  averment  was  held  insufficient,  for 
the  reason  that  it  could  not  be  deduced  therefrom  that  the 
notice  was  reasonable.^  So  if  A.  promises  to  pa}^  to  B.,  before 
the  end  of  a  fair,  as  much  as  B.  disburses  at  such  fair,  in  an 
action  by  B.  on  such  promise  he  ought  to  allege  notice 
given  of  such  disbursements,  before  the  end  of  the  fair, 
otherwise  he  will  be  too  late.- 

§  1394.  Must  Aver  Notice  to  Proper  Party. —  It  should 
also  appear,  either  by  direct  averment  or  necessary  intend- 
ment, that  the  alleged  notice  was  given  to  the  proper  party. 
As,  for  example,  where  the  action  is  on  a  breach  of  condi- 
tion to  repair,  upon  notice,  the  allegation  should  be  that 

1  Rogers  v.  Mutton,  7  Hm-1.  &,  Nor.,  733. 

2  Com.  Dig.  PI.,  C,  74. 


PLEADING.  695 

such  notice  was  given  to  bim  who  had  the  entire  interest  in 
the  premises,  and  not  to  an  under  lessee.^ 

§  1395.  Should  Show  Strict  Compliance  When  Con- 
structive Notice. —  When  any  other  form  of  service  is  sub- 
stituted by  statute  for  that  of  personal  delivery  to  the  party 
to  be  affected,  the  pleading  should  show  a  strict  compliance 
with  such  statutory  form.  As  where  service  by  mail  was 
authorized  by  statute,  it  was  held  that  it  must  appear  by 
the  pleading  that  the  notice  was  deposited  in  the  postoffice, 
directed  to  the  party,  his  agent  or  attorney,  at  his  place  of 
residence,  with  full  postage  paid  thereon.  The  allegation 
that  it  was  "  mailed  "  would  not  be  sufficient.- 

§  1396.  In  Due  Time  and  to  Proper  Person. —  It  has 
been  held,  however,  under  the  common  law  practice,  in  a 
suit  on  a  bill  against  the  indorser,  that  a  general  allegation 
of  notice  of  demand  and  refusal  would  be  sufficient.*  But 
it  is  laid  down  as  a  rule  by  the  highest  authority  upon  com- 
mon law  pleading,  that  "it  ought  to  appear  that  notice  was 
given  in  due  time  and  to  a  proper  person."  ^  It  is  also  de- 
clared that  where  no  notice  whatever  has  been  given,  the 
absconding  of  the  party,  or  other  cncumstances,  should  be 
stated  as  an  excuse  for  the  want  of  notice.  And  even 
where  there  has  been  a  justifiable  delay  in  giving  the  notice 
at  the  regular  time,  though  sometimes  the  facts  excusing 
the  delay  are  allowed  to  be  given  in  evidence  under  the 
averment  that  notice  was  given,  it  is  regarded  as  the  better 
practice  to  state  the  facts  of  the  excuse.^  This  rule  is  more 
explicitly  laid  down  in  cases  decided  under  the  codes  of 
practice  of  several  of  the  states,  and  is  generally  followed 
wherever  the  code  has  been  adopted. 

§  1397.  Waiver  or  Excuse. —  In  an  action  against  the 
indorser  of  a  note,  under  an  allegation  of  demand  and  no- 

iStewton  V.  Cushe,  Yel.,  37. 
2 Clark  V.  Adams,  b3  Mich.,  159. 
3  Boot  V.  Franklin,  3  Johns.,  207. 
*1  Chit.  PI.,  328. 
5  1  Chit.  PI.,  328-9. 


096  PRACTICE   AND    PLEADING. 

tice,  it  was  held  that  the  plaintiff  could  not  introduce  evi- 
dence  tending  to  prove  the  absence  of  the  indorser,  as  an 
excuse  for  not  giving  such  notice.  The  grounds  of  excuse 
upon  which  plaintiff  reUed  were  regarded  as  facts  consti- 
tutive of  his  cause  of  action,  and,  therefore,  such  as  it  was 
necessary  to  allege  in  order  to  lay  a  foundation  for  the  evi- 
dence.^ So,  in  England,  it  is  a  rule  of  pleading  that  a  waiver 
of  notice  made  before  dishonor,  or  other  facts  excusing  no- 
tice of  the  dishonor  of  commercial  paper,  cannot  be  proved 
under  an  allegation  of  due  notice.^  Some  of  the  earlier 
cases  in  this  country,  especially  in  Massachusetts  and  Con- 
necticut, have  decided  the  question  the  other  "way,  and  ad- 
mitted evidence  of  waiver  of  notice,  or  in  excuse  for  the 
want  of  notice,  under  an  allegation  that  notice  w^as  given.* 
But  in  the  former  state,  where  this  manner  of  jjleading  w^as 
recognized  in  cases  involving  notice  of  the  dishonor  of  bills 
and  notes,  in  one  case  it  w^as  regarded  as  exceptional,  and 
not  apphcable  to  other  executory  agreements.*  The  con- 
flict upon  this  question  is  not  confined  to  the  comets,  but 
there  seems  to  be  a  difference  of  opinion  between  the  text- 
writers  as  to  wiiich  is  the  rule  in  the  United  States.  Mr. 
Daniel,  m  his  recent  work  on  ISTegotiable  Instruments, 
regards  the  established  doctrine  as  being  in  harmon}'-  with 
the  Massachusetts  cases  cited,^  while  Mr.  Edwards,  who  may 

1  Pier  V.  Heinrichoffen,  52  Mo.,  333.  See,  also,  Garvey  v.  Fowler, 
4  Sandl,  665;  Shultz  v.  Depuy,  3  Abb.  Pr.,  252;  Lumbert  v.  Palmer, 
29  la.,  104;  Cole  v.  Wintercost,  12  Tex.,  118;  Curtis  v.  State  Bank, 
6  Blackf.,  312. 

2 Burgh  V.  Legge,  5  M.  &  W.,  418;  Murray  v.  King,  5  B.  &  Aid.,  165; 
Allen  V.  Edmundson,  17  L.  J.,  N.  S.,  Exch.  of  PI.,  291;  S.  C,  2  Exch., 
719. 

3  City  Bank  v.  Cutter,  3  Pick.,  414;  Taunton  Bank  v.  Richardson,  5  id., 
436;  Jones  v.  Fales,  4  Mass.,  245;  North  Bank  v.  Abbot,  13  Pick.,  465; 
Harrison  v.  Bailey,  99  Mass.,  620;  Kent  v.  Warner,  12  Allen,  561 ;  Norton 
V.  Lewis,  2  Conn.,  478;  Camp  v.  Bates,  11  Conn.,  488;  Windham  Bank  v. 
Norton,  22  Conn.,  213,  See,  also,  Williams  v.  Mathews,  3  Cow,,  252; 
Ogden  V.  Cowley,  2  Johns.,  274. 

4  Colt  V.  Miller,  10  Cush.,  51. 

5  2  Daniel,  Negot.  Inst.,  §  1048. 


PLEADING.  697 

be  looked  upon  as  a  thoroughly  competent  exponent  of  the 
practice  under  the  New  York  code,  declares  that,  in  plead- 
ing notice,  "  the  complaint  must  state  the  facts  constituting 
the  cause  of  action  on  which  plaintiff  seeks  to  recover," 
A  waiver  of  notice  cannot  be  proved  under  an  allegation 
of  due  notice.^  This  seems  to  be  in  substantial  conformity 
to  the  spirit  of  any  system  of  pleading,  which  requires  a 
statement  oifacU,  and  not  conclusions  of  laio. 

§  1398.  Facts  Pleaded  According  to  Legal  Effect. — 
Tliough  it  is  necessary  to  plead  the  facts  upon  Avhich  a  party 
ralies,  it  is  neither  necessary  nor  permissible,  under  any  good 
system  of  pleading,  to  state  the  evidence  by  which  those 
facts  are  to  be  established.-  Equal  care  should  be  observed 
to  avoid,  on  the  one  hand,  the  averment  of  conclusions  of 
law,  while  endeavoring  to  plead  facts  according  to  their 
legal  effect ;  and,  on  the  other,  the  statement  of  evidence, 
instead  of  the  facts  to  be  proved.  In  pleading  notice  given 
to  an  agent,  the  averment  should  be  of  notice  to  the  princi- 
pal. It  may  reasonably  be  doubted  whether  an  averment 
of  notice  to  an  agent  would  be  sufficient  to  admit  evidence 
upon  that  point,  against  the  objection  of  the  other  party, 
unless  there  were  other  allegations  which  would  show,  not 
only  that  it  was  given  to  an  agent,  but  to  the  agent  to 
whom  it  might  be  given  so  as  to  bind  the  principal.' 
Whether  the  notice  be  served  upon  the  principal  or  the 
agent,  the  legal  effect  is  notice  to  the  principal.  This  is  the 
fact  to  be  proved.  The  manner  in  which  it  was  served  is 
the  evidence,  whether  that  be  by  giving  it  to  an  agent 
authorized  to  receive  it  or  to  the  principal  in  person. 

§  1399.  Manner  of  Averring  Want  of  Notice. —  An 
averment  of  want  of  notice  should  be  no  less  clear  and 
unambiguous  than  is  required  when  notice  is  alleged.  It 
must  be  an  averment  of  an  issuable  fact  not  involved  in  an 
issue  of  law.     As  where  the  answer  was  a  denial  of  knowl- 

•  Edw.  on  Bills,  636. 

2  1  Chit.  PI.,  566. 

s  See  ante,  ch.  IX,  part  II. 


698  PEAOTICE   AKD   PLEADING. 

edge,  information  or  belief  as  to  whether  notice  had  been 
given  as  required  hy  law,  it  was  held  that  this  merely  raised 
an  issue  as  to  the  lawfulness  of  the  notice,  which  was  not  a 
l^roper  question  to  be  submitted  by  the  pleadings.  Thefact 
as  to  whether  notice  had  been  given  was  lost  sight  of,  and 
consequently  the  pleading  was  bad.^ 

§  1400.  Admission  of  Notice  by  Answer. —  But  where 
the  answer  admits  notice,  reasonable  notice  will  be  intended, 
and  the  question  ceases  to  be  one  for  the  jury,  whether  the 
notice  was  reasonable  or  mireasonable.^  A  denial  of  any 
notice  whatever  would  be  sufficiently  comprehensive  to  in- 
clude any  issue  upon  that  question  presented  by  the  plaint- 
iff, and  would  therefore  be  regarded  as  sufficient,  without 
entering  into  particulars.  xVnd  when  the  action  was  brought 
on  a  joint  contract,  an  allegation  by  defendants  that  notice 
w^as  not  given  them  would  be  sufficient  without  alleging 
that  notice  was  not  given  either  of  them.^  Although  it 
would  doubtless  be  held  otherwise  when  the  contract  was 
both  joint  and  several,  or  where  the  obligors  were  partners, 
and  the  transaction  was  in  connection  with  the  business  of 
the  partnership. 

§1401.  Consequences  of  Defective  Pleading. —  As  to 
the  consequences  of  defective  pleading  in  cases  where  aver- 
ment of  notice  is  necessary,  there  seems  to  be  no  general 
rule  which  is  universally  recognized.  Lord  Mansfield  lays 
down  the  distinction  between  the  consequences  of  a  defect- 
ive averment  and  no  averment  of  notice  thus :  The  former, 
he  declares,  may  be  cured  by  verdict,  because,  to  entitle 
plaintiff  to  recover,  '*  all  circumstances  necessary,  in  form 
or  substance,  to  complete  the  title  so  imperfectly  stated 
must  be  proved  at  the  trial  —  it  is  a  fair  presumption,  after 
verdict,  that  they  w^ere  proved ;  '■  while  as  to  the  latter  he 
says :  "  "When  the  plaintiff  totally  omits  to  state  his  title 
or  cause  of  action,  it  need  not  be  proved  at  the  trial,  and 

» Seeding  v.  Bartlett,  35  Mo.,  90. 
2Lai'abee  v.  Searsport,  42  Me.,  203. 
3  Watson  V.  Walker,  23  N.  H.,  471. 


PLEADING.  699 

therefore  there  is  no  room  for  presumption."^  The  case 
cited  was  an  action  against  an  indorser,  and  the  plaintiff 
failed  to  allege  demand  and  notice,  wherefore  it  was  argued 
that  no  proof  at  the  trial  could  make  good  a  declaration 
which  contained  no  ground  of  action  on  its  face,  and  it  was 
accordingly  held  that  judgment  for  plaintiff  on  «uch  a  dec- 
laration should  have  been  arrested.  The  doctrine  announced 
by  the  learned  jurist  would  seem  to  apply  with  equal  force 
to  actions  on  contracts  of  any  kind  where  notice  was  a  con- 
dition precedent,  and  consequently  necessary  to  the  state- 
ment of  a  cause  of  action;  but  Mr.  Chitty,  in  his  incom- 
parable work  on  Pleading,  states  the  English  rule  under  the 
common  law  practice  in  these  words:  ''  The  omission  of  an 
averment  of  notice  will  be  fatal  on  demurrer  or  judgment 
by  default,  but  may  be  aided  by  a  verdict,  unless  in  an  ac- 
tion against  the  drawer  of  a  hill,  when  the  omission  of  the 
averment  of  notice  of  non-payment  of  the  acceptor  is  fatal 
even  after  verdict."  ^  So  in  this  country  substantially  the 
same  reasoning  employed  by  Lord  Mansfield  in  support  of 
the  doctrine  that  defective  or  inaccurate  averments  would 
be  cured  by  a  verdict,  is  put  forth  to  cure  an  entire  omission 
of  any  allegation  whatever.^  There  it  Avas  decided  that, 
even  where  an  averment  of  notice  of  a  condition  precedent 
was  necessar}^,  and  was  omitted,  the  omission  was  cured  by 
verdict,  because  it  ivas  a  question  involved  in  the  issue,  and 
must  he  presumed  to  have  l)een  -proved,  though  not  alleged} 

§  1402.  Practice  Under  the  Code. —  In  those  states 
where  the  code  has  been  adopted,  the  practice  differs  mate- 
rially from  that  at  common  law,  and  in  nothing  more  than 
in  the  manner  of  stating  a  cause  of  action,  in  the  initial 
pleading.  The  codes  not  only  differ  from  the  common  law 
practice,  but  in  many  particulars  differ  from  each  other; 
but  very  few,  if  any  of  them,  leave  room  for  the  indulgence 

1  Rushton  V.  Aspinwall,  1  Douglas,  653. 

22  Chit.  Plead.,  329;  id.,  681. 

»Colt  V.  Root,  17  Mass.,  229. 

<  Crocker  v.  Gilbert,  9  Cush.,  131. 


700  PKACTICE    AlO)   PLEADING. 

of  presumptions  by  the  court  as  to  the  proof  of  facts  not 
alleged  in  the  pleadings.  In  some  of  them,  at  least,  the 
omission  of  material  allegations  may  be  supplied  by  amend- 
ment, to  conform  the  pleadings  to  the  proof.  If  notice  is  a 
fact  necessary  to  constitute  a  cause  of  action,  its  omission 
will  affect  the  case  at  all  its  stages,  precisel}"  as  it  would  be 
affected  by  the  omission  of  any  other  material  averment, 
want  of  which  would  render  the  pleading  demurrable  on 
the  ground  that  it  did  not  state  facts  sufficient  to  constitute 
a  cause  of  action,  or  a  defense  to  an  action. 


CHAPTER  XIII. 

FACTS  OF  WHICH  COUETS  TAKE  JUDICIAL  NOTICE. 

§  1403.  A  General  View  of  the  Subject. 

1404.  Public  Statutes,  the  Common  Law  and  General  Customs. 

1405.  Foreign  Laws  and  Customs. 

1406.  Public  Treaties. 

1407.  Public  Institutions. 

1408.  Local  Customs,  and  Special  and  Private  Statutes. 

1409.  Municipal  Ordinances. 

1410.  Geograpliical  Facts. 

1411.  Historical  Facts,  Incorporation  of  Towns,  etc. 

1412.  Election  and  Appointment  of  Officers. 

1413.  Official  Signatures  and  Seals. 

1414.  Terms  of  Court  and  Judicial  Proceedings. 

1415.  The  General  Course  of  Nature. 

1416.  Scientific  and  Other  Facts  of  Uniforrn  Occurrence. 

1417.  Facts  Occurring  in  the  General  Course  of  Human  Life  —  The 

Ai'ts,  etc. 

§1403.   A  General  Tiew  of  the  Subject. —  It  is  not 

because  the  matters  treated  of  in  this  chapter  are  strictly 
germain  to  that  of  Notice,  in  general,  that  it  is  added  in  the 
second  edition.  All  other  considerations  have  been  subordi- 
nated to  that  of  utility ;  and  the  numerous  complaints  made 
to  the  author  because  of  the  absence  of  this  topic  from  the 
first  edition  have  convinced  him  that  many  practitioners 
look  here  for  some  light  upon  this  branch  of  the  law.  When 
the  court  is  asked  to  take  judicial  notice  of  a  fact,  it  is  not 
always  a  simple  problem  that  demands  solution.  It  is  not 
in  every  instance  easy  to  determine  whether  the  matter  is 
one  that  comes  within  the  range  of  judicial  notice.  The 
subjects  upon  which  the  court  is  asked  to  exercise  this  pe- 
culiar power  are  various  and  diverse  in  character,  and 
demand  repeated  modifications  of  the  rules  by  which  the 
discretion  of  the  court  is  governed.     There  seems,  indeed, 


702  FACTS   OF   WHICH    COURTS   TAKE    JUDICIAL    NOTICE. 

to  be  no  general  rule  which  governs  all  phases  of  the  sub- 
ject. The  classes  of  facts  of  which  notice  will  be  taken 
are  judicial,  legislative,  political,  historical,  geographical, 
commercial,  scientific  and  artistic,  in  addition  to  a  wide 
range  of  matters,  arising  in  the  ordinary  course  of  nature, 
or  the  general  current  of  human  affairs,  which  rest  entirely 
upon  acknowledged  notoriety  for  their  claims  to  judicial 
recognition.  The  difficulties  in  the  way  of  determining 
whether  a  particular  fact  belongs  to  this  class  are  enhanced 
b}^  the  circumstance  that  though  its  notoriety  has  a  control- 
ling influence,  this  is  not  of  itself  sufficient.  l!^or  is  it  necesr 
sary  that  the  fact  shall  be  actually  known  to  the  court. 
The  judge  sitting  at  nisi  prius  may  not  be  sufficiently 
informed  as  to  a  fact  in  natural  science,  or  the  history  of 
the  country,  of  which  he  is  bound  to  take  notice.  He  may 
not  even  be  able  to  recall,  without  making  special  inquiry 
into  the  matter,  the  day  of  the  week  upon  which  a  date 
happened  to  occur,  and  yet  this  may  be  shown  by  any  avail- 
able and  authentic  means,  to  his  satisfaction,  and  the  knowl- 
edge thus  acquired,  without  either  allegation  or  proof  by 
ordinary  methods,  may  controt  his  decision.  Facts  of  which 
the  court  takes  notice  may  be  embraced  in  instructions  to 
the  jury,  without  invading  the  province  of  that  body,  as 
triers  of  questions  of  fact.  That  the  doctrine  is  an  essential 
one  is  beyond  question.  But  the  difficulties  that  arise  from 
the  uncertainty  of  the  rules  b}^  which  it  is  governed,  render 
it  impracticable  to  point  out  their  application  otherwise 
than  by  an  appeal  to  examples  furnished  by  the  courts. 

§1404.  Public  Statutes,  the  Common  Law  and  General 
Customs.^ —  The  rule  is  quite  uniform  that  courts  will  take 
judicial  notice  of  legislative  enactments  which  are  recog- 
nized as  public  acts  within  the  state  or  territorj^  in  which 
the  court  is  held.^     Thus,  where  a  public  act  expressly  recog- 


iLevy  V.  The  State,  6  Ind.,  281;  Parent  v.  Walmsley,  20  Ind.,  82; 
Covington,  etc.,  Co.  v.  Shepherd,  20  How.,  227;  Prell  v.  McDonald,  7 
Kan..  426;  Wright  v.  Hawkins,  28  Tex.,  452;  The  State  v.  Jarrett,  17 


FACTS    OF    WHICH    COURTS    TAKE    JUDICIAL   NOTICE.  T03 

nizes  and  amends  a  private  act,  courts  will  take  notice  of 
the  existence  and  duties  of  an  officer  provided  for  in  the 
latter.'  In  applying  this  principle  the  courts  make  dis- 
tinctions between  statutes  which  are  denominated  "  public," 
whether  they  are  "  general "  in  their  application  to  the  en- 
tire state  or  territory,  and  to  all  persons  therein  or  not,  and 
those  which  are  private.  They  accordingly  hold  statutes 
judicially  noticeable  which  are,  in  the  common  understand- 
ing of  the  terms,  "  local,"  or  "  special,"  when  declared  to 
be  "public."  Hence,  a  railroad  charter,  published  with 
other  legislative  enactments,  was  held  entitled  to  notice 
in  this  manner.-  So  laws  for  the  government  of  integral 
portions  of  the  state,  known  as  municipal  charters  and  the 
amendments  thereto,  have  been  held  to  be  of  this  class, 
though  they  only  applied  to  certain  designated  localities.' 
The  courts  wiU  take  notice  of  the  date  when  a  statute  went 
into  effect,  as  well  as  its  other  provisions.*  ]^or  do  statutes 
depend  for  recognition  upon  the  fact  that  they  were  en- 
acted by  the  governing  legislative  body  of  the  sovereignty 
by  which  the  court  is  established.  Thus  the  courts  of  the 
different  states   are  bound  to  take  judicial  notice  of  the 


Md.,  309;  People  v.  Mahaney,  13  Mich.,  481;  Payne  v.  Ti-eadwell,  IG 
Ca].,  220;  Division  of  Howard  County,  15  Kan.,  194;  Belmont  v.  Mor- 
i-m,  69  Me.,  314;  Reed  v.  Wilson,  41  N.  J.  L.,  29;  East  Tenn.,  etc.,  Co. 
V.  Gaskell,  2  Lea  (Tenn.),  742;  Lavalle  v.  People,  6  111.  App.,  157; 
United  States  v.  Jackson,  104  U.  S.,  41;  Elwood  v.  Flannigan,  104  U. 
S.,  562;  Hall  v.  Brown,  58  N.  H.,  93;  Madison  Co.  Com'rs  v.  Biuford,  93 
Ind.,  383. 

1  Lavalle  v.  People,  6  111.  App.,  157. 

2  Hall  V.  Brown,  58  N.  H.,  93. 

3 Case  u.  Mobile,  30  Ala.,  538;  Belmont  v.  Morrill,  69  Me.,  314;  Buell 
V.  Warner,  33  Vt.,  570;  Gordon  v.  Montgomery,  19  Ind.,  110;  Mac.  v. 
Titcombe,  19  Ind.,  135;  Terry  v.  Milwaukee,  15  Wis.,  490;  Alexander  v. 
ililwaukee,  16  Wis.,  247;  Janesville  v.  Slilwaukee,  etc.,  R.  Co.,  7  Wis., 
484;  Davis  v.  Bank  of  Fulton,  31  Ga.,  69;  Bretz  v.  Mayor,  etc.,  of  N. 
Y.,  6  Rob.  (N.  Y.),  325;  Bevens  v.  Baxter,  23  Ark.,  387;  Hawthorne  r. 
Hoboken,  32  N.  J.  L.,  172;  Fauntleroy  v.  Hannibal,  1  Dill.,  118. 

•*  Attorney -General  ^•.  Foote,  11  Wis.,  14;  Heaston  v.  Cincinnati,  etc., 
tl.  Co.,  16  Ind.,  275;  The  State  v.  Bailey,  16  Ind.,  46. 


TOi  FACTS   OF   WHICH    COUKTS   TAKE   JUDICIAL   NOTICE. 

laws  of  congress.^  This  has  been  so  decided  in  reference 
to  acts  fixing  the  value  of  coin ;  ^  authorizing  the  survey 
and  subdivision  of  the  public  lands;'  the  laws  providing 
for  assessment  and  collection  of  the  internal  revenue  for 
federal  purposes;*  the  act  regulating  proceedings  in  bank- 
ruptcy;^ the  laws  enacted  for  the  government  of  the  Dis- 
trict of  Columbia;^  as  well  as  all  other  acts  of  a  public 
character,  or  which  are  declared  so  to  be.  For  like  reasons 
of  public  policy,  the  federal  courts  recognize,  without  alle- 
gation or  proof,  the  public  acts  of  the  legislatures  of  the 
different  states.^  So  judicial  notice  is  taken  of  the  common 
law  and  general  customs  of  the  community  in  which  the 
court  is  held.  Without  special  enactment,  the  law  merchant 
governing  the  transfer  of  commercial  paper  by  indorsement 
will  be  noticed  by  the  courts,  where  such  law  has  not  been 
abrogated  by  statute.^  Courts  have  also  taken  judicial  no- 
tice of  military  orders  of  a  general  character,  witliin  the  dis- 
trict where  the  courts  were  held,  when  such  orders  affected 
judicial  proceedings,  and  were  issued  by  officers  of  recog- 
nized authority.^    But  when  the  subject-matter  to  which 

1  Merrill  t7.  Dawson,  1  Hempst.,  563;  Semple  v.  Hagar,  27  Cal.,  163; 
Dickenson  v.  Breeden,  80  111.,  279;  Wright  v.  Hawkins,  28  Tex.,  452; 
Papin  V.  Ryan,  32  Mo.,  21. 

2  Daily  v.  The  State,  10  Ind.,  536. 

sPriezer  v.  Exchange,  etc.,  Ins.  Co.,  6  Wis.,  89;  Atwater  v.  Schenck, 
9  Wis.,  160;  Semple  v.  Hagar,  27  Cal.,  163;  Papin -y.  Ryan,  32  Mo.,  21; 
Dickenson  v.  Breeden,  30  HI.,  279. 

4Kessel  v.  Albetis,  56  Barb.,  362. 

5  Muns  V.  Swartz,  37  Tex.,  13. 

6  Bayly  v.  Chubb,  16  Gratt.,  284. 

^Elwood  V.  Flannigan,  104  U.  S.,  562;  Griffing  v.  Gibb,  2  Black,  519; 
Smith  V.  Tallapoosa  County,  2  Woods,  574 ;  Fauntleroy  v.  Hannibal,  1 
DiU.,  118;  Jasper  v.  Porter,  2  McLean,  579;  Jones  v.  Hays,  4  McLean, 
521;  Owings  v.  HuU,  9  Pet.,  607. 

8  Reed  v.  Wilson,  41  N.  J.  L.,  29;  Brandao  v.  Barnett,  12  C.  &  F.,  787; 
3  C.  B.,  519.  See,  also,  Sims  v.  Marry att,  17  Q.  B.,  281 ;  In  re  Nesbitt, 
2  D.  &  L.,  529. 

9  New  Orleans,  etc.,  Canal  Co.  v.  Templeton,  20  La.  An.,  141;  Taylor 
V.  Graham,  18  La.  An.,  656;  Lanfier  v.  Mestier,  18  La.  An.,  497;  Gates 
V.  Johnson  County,  36  Tex.,  141. 


FACTS    OF   WHICH    COrETS    TAKE    JUDICIAL    NOTICE.  705 

such  orders  are  directed  lies  beyond  the  scope  of  the  offi- 
cer's lawful  authority,  the  courts  would  not  be  under  any 
obligation  to  notice  them,  further  than  they  might  claim 
attention  as  facts  of  general  notoriety.  It  is  only  of  gen- 
eral orders  of  a  restricted  class,  that  courts  are  required  to 
take  notice,  even  when  issued  in  the  line  of  duty  of  the  com- 
manding officer.^  They  are  only  so  recognized  when  they 
are  of  a  character,  or  issued  under  such  circumstances,  as  to 
become  laws  governing  the  action  of  the  court.  In  respect 
to  public  statutes,  it  may  be  observed  that  the  usual  form 
in  ^vhich  they  are  brought  to  the  notice  of  the  court  is  as 
published  by  authority.  But  there  is  some  conflict  of  author- 
ity upon  the  question  whether  the  journals  of  legislative 
assemblies  will  be  judicially  noticed.  In  Alabama  they  are 
placed  upon  precisely  the  same  footing  as  the  printed  stat- 
utes, and  if  it  appears  from  the  journal  of  either  house 
that  a  certain  law  was  not  enacted  in  the  manner  pointed 
out  by  the  constitution,  the  act  will  be  held  void.^  The 
same  doctrine  is  laid  down  in  Michigan ;  ^  while  in  Illinois/ 
Indiana'^  and  Kentucky,''  it  is  held  otherwise.  Th^  English 
courts  also  refuse  to  take  notice  of  the  journals  of  the  house 
of  commons,'  while  they  do  take  notice  of  the  privileges  of 
the  house,^  and  also  of  its  standing  orders."  They  also  take 
notice  of  royal  proclamations,^"  and  of  the  maritime  law  of 

1  Burk  V.  Miltenberger,  19  Wall.,  519. 

2 Moody  V.  The  State,  48  Ala.,  115.  In  Iowa  the  courts  take  judicial 
notice  of  the  correct  reading  of  a  statute  as  it  appears  in  the  office  of 
the  secretary  of  state.     Clare  v.  The  State,  5  Iowa,  286. 

3  The  People  v.  Mahaney,  13  Jllch.,  481. 

<Grobv.  Cushman,  45  111.,  119. 

5  Coleman  v.  Dobbins,  8  Ind.,  156. 

<»  Auditor  v.  Hay  croft,  14  Bush,  284. 

7  King  V.  Arundel,  Hob.,  109. 

sstockdale  V.  Housard,  9  Ad.  &  L.,  107;  4  Jur.,  70;  3  P.  &  D.,  330. 
See  Burdett  v.  Abot,  5  Dow.,  165;  14  East,  1;  Burdett  v.  Colman,  14 
East,  163. 

9  Ex  parte  Stockbridge  Railway  Bill,  L.  R.,  2  Eq.,  364. 

10  Van  Omeron  v.  Dowick,  2  Camp.,  44. 

45 


TOG  FACTS    OF    Allien    COUKTS    TAKE    JUDICIAL    NOTICE. 

nations.^    The  latter  would  be  judicially  noticeable  in  the 
courts  of  this  country. 

§  1405.  Foreign  Laws  and  Customs. —  The  laws  and 
customs,  however,  which  are  generally  judicially  noticed, 
either  in  this  country  or  in  England,  are  those  which  are 
enacted  or  in  force  in  the  country  under  the  authority  of 
which  the  court  is  held.  In  states  where  the  common  law 
has  been  adopted,  it  will  be  presumed  to  be  the  law  of  a 
foreign  state  also,  unless  there  be  allegation  and  proof  to 
the  contrary.-  And  not  only  will  the  courts  of  one  state, 
where  the  common  law  prevails,  refuse  to  take  notice  of  a 
foreign  statute  by  which  it  is  abrogated,  but  they  will,  in 
general,  refuse  to  take  judicial  notice  of  a  different  com- 
mon law  rule  from  their  own.^  Xor  that  the  statutes  of 
the  other  state  contain  different  provisions  on  the  same  sub- 
ject.* In  this  respect,  however,  there  is  not  perfect  har- 
mon}''  in  the  rahngs.  In  Louisiana  it  has  been  decided  that 
the  court  would  take  judicial  notice  that  certain  laws  pecul- 
iar to  that  state  were  not  recognized  in  other  jurisdictions."* 

J  Chandler  v.  Grieves,  2  H.  Bl.,  606. 

-'Whitesides  v.  Poole,  9  Rich.  L.,  68;  Trigg  v.  Conway,  1  Houst.,  538: 
Kidd  V.  Manley,  28  Miss.,  136;  Woodrow  v.  O'Conner,  28  Vt.,  776:  Bean 
V.  Briggs,  4  Iowa,  464;  Charlotte  v.  Chouteau,  25  Mo.,  465;  Cavender  v. 
Guild,  4  Cal.,  250;  Anderson  v.  Anderson,  23  Tex.,  639:  Faulk  v.  Faulk, 
23  Tex.,  653;  Carey  v.  Cincinnati,  etc.,  R.  Co.,  5  Iowa,  357;  Johnson  v. 
Chambers,  12  Ind.,  102;  Rape  v.  Heaton,  9  Wis.,  328;  Cutler  v.  Wright, 
22  N.  Y.,  472;  Palfrey  v.  Portland,  etc.,  R.  Co.,  4  AUen,  55;  Hoyt  v. 
McNeil,  13  Minn.,  390;  Simms  v.  Southern  Express  Co.,  38  Ga.,  129; 
Condit  V.  Blackwell,  19  N.  J.  Eq.,  193;  Mobile,  etc.,  R.  Co.  v.  Whitney, 
39  Ala.,  468;  Eastman  v.  Crosby,  8  Allen,  206;  Syme  v.  Stewart,  17  La. 
An.,  73;  Bliss  on  Code  PL,  §  287,  citing  Thatcher  v.  Morris,  11  N.  Y., 
437;  Beach  v.  The  Bay  State,  etc.,  Co.,  30  Barb.,  433:  Nelson  v.  Brid- 
port,  8  Beav.,  527;  10  Jur.,  871;  Bristow  v.  Secqueville,  5  Exch.,  275; 
19  L.  J.  Exch.,  289;  Robards  v.  Marley.  80  Ind.,  185. 

"Houghtahng  v.  Ball,  19  Mo.,  84;  Wilson  v.  Cockrill,  8  Mo.,  7;  Bil- 
lingsley  v.  Dean,  11  Ind.,  331. 

^Phoenix  Ins.  Co.  v.  Church,  59  How,  Pr.,  293;  Neese  v.  Farmers'  Ins. 
Co.,  55  Iowa,  604;  Chapman  v.  Colby,  47  Mich.,  46;  Bradley  v.  Hardin, 
73  Ala.,  70;  Bush  v.  Gai-ner,  73  Ala.,  162. 

sMcIlvaine  v.  Legare,  34  La.  An.,  923. 


FACTS    OF    WHICH    COURTS    TAKE    JUDICIAL   NOTICE.  707 

There  care  other  exceptions  to  the  doctrine  as  broadl}^  stated 
in  reference  to  foreign  laws.  The  manner  of  proving  the 
statutes  of  sister  states,  and  the  territories  of  the  United 
States,  have  been  much  simphfied  bv  legislation,  so  that  the 
difference  between  them  and  domestic  statutes  is  hardly 
realized,  except  in  the  matter  of  pleading.  And  for  certain 
purposes  it  seems  that  some  of  the  courts,  at  least,  will  take 
judicial  notice  of  the  statute  of  a  neighboring  state,  so  that 
it  need  not  be  either  pleaded  or  proved.  Thus,  under  the 
provisions  of  the  federal  statute  requiring  full  faith  and 
credit  to  be  given  to  judicial  proceedings  in  the  courts  of 
other  states,  and  providing  the  means  of  authenticating 
court  records,  it  was  held  in  Pennsylvania  that,  in  order  to 
carry  these  provisions  into  effect,  the  courts  of  that  state 
would  take  notice  of  the  local  laws  of  the  state  from  which 
the  record  in  question  was  certified.^  So,  where  a  judg- 
ment of  a  foreign  court  was  offered  in  evidence  in  "Wiscon- 
sin, judicial  notice  was  taken  of  the  law  of  the  state  where 
it  Avas  rendered,  by  which  circuit  courts  were  made  courts 
of  general  jurisdiction,  this  being  essential  to  the  validity 
of  the  authentication  of  such  judgment.-  So  also  has 
judicial  notice  been  taken  of  the  constitution  of  a  sister 
state,'  particularly  where  the  purpose  of  such  recognition 
was  to  show  that  the  record  was  authenticated  by  the  proper 
clerk,  and  that  it  was  the  judgment  of  a  court  of  record.'' 
And  state  courts  have  also  taken  notice  of  the  laws  of  other 
states,  where  the  validity  of  acts  done  under  such  laws 
was  recognized.^  So  the  courts  of  Kentucky  have  taken 
judicial  notice  of  the  laws  of  Virginia,  which  were  common 
to  the  two  states  prior  to  their  separation.^    So  also  do  the 

1  State  of  Ohio  v.  Hinchman,  27  Pa.  St.,  479. 

-  Jarvis  v.  Robinson,  21  Wis. ,  523. 

s  Butcher  v.  Brownsville,  2  Kan. ,  70. 

*  Morse  v.  Hewett,  28  Mich.,  481 ;  Dodge  v.  Coffin,  15  Elan.,  277. 

5 Carpenter  v.  Dexter,  8  Wall.,  513. 

6  Delano  v.  Jopling,  1  Litt.,  117. 


708  FACTS    OF   "WHICH    COURTS    TAKE    JUDICIAL   NOTICE. 

states  of  Missouri  ^  and  California  -  take  judicial  notice  of 
the  laws  governing  their  respective  territories  prior  to  their 
acquisition  by  the  United  States ;  but  these  can  hardly  be 
regarded  as  exceptions  to  tlie  rule,  as  it  amounts  to  nothing 
more  than  judicial  recognition  of  the  prior  laws  of  the 
land.''  The  Indiana  courts,  for  similar  reasons  that  govern 
the  courts  of  Kentucl^y,  take  notice  of  a  Virginia  statute 
reserving  certain  rights  to  legislate  in  respect  to  a  portion 
of  the  territory  known  as  the  "  Illinois  grant,"  released  to 
the  general  government.*  Following  the  same  principle, 
the  courts  of  Tennessee  have  taken  judicial  notice  of  cer- 
tain J^ortli  Carolina  statutes.'^  When  the  existence  of  a 
foreign  statute  has  been  once  judicially  acknowledged,  the 
same  court  will  presume  its  continuance  in  force  as  proven, 
until  its  repeal  or  amendment  has  been  established  by  com- 
petent evidence.*^ 

§14:00.  Public  Treaties. —  Closely  aUied  to  public  stat- 
utes, as  being  entitled  to  judicial  recognition  without  plead- 
ing or  proof,  are  the  treaties  entered  into  by  the  general 
government  with  foreign  states  or  the  Indian  tribes.  Being 
the  public  acts  of  that  branch  of  the  government  clothed 
by  the  federal  constitution  with,  plenary  powers  in  the  prem- 
ises, they  become  a  part  of  the  law  of  the  land,  to  the 
same  extent  as  though  they  were  the  results  of  national 
legislation.  Hence  such  treaties  will  be  judicially  noticed 
by  both  national  and  state  courts.''  The  obligations  assumed 
by  the  United  States  rest  alike  upon  the  United  States  and 
each  member  of  the  Union,     AU  are  represented  by  the 

1  Chouteau  v.  Pierre,  9  Mo.,  3;  Anderson  v.  Biddle,  9  Mo.,  580. 

2  Payne  v.  Ti-eadwell,  16  Cal.,  230. 

3 See  United  States  v.  Turner,  11  How.,  663, 

^Henthorn  v.  Doe,  1  Blackf.,  157. 

5  Richards  v.  Hicks,  1  Overton,  207.  See,  also,  IMiddlebury  C!ollege  v. 
Cheney,  1  Yt.,  348;  Herschfeld  v.  Dexel,  12  Ga.,  582. 

6 Graham  v.  WiUiams,  21  La.  An.,  594. 

■'Montgomery  v.  Deeley,  3  Wis.,  709;  La  Croix  v.  Sarrazia,  15  Fed. 
Rep.,  489. 


FACTS   OF   WHICH   COUKTS   TAKE   JUDICIAL   NOTICE.         709 

treaty-making  power,  and  the  courts  belong  to  a  branch  of 
the  same  general  government,  and  are  authorized  by  the 
same  fundamental  law,  as  agencies  for  carrying  out  a  com- 
mon purpose.  And  this  recognition  must  embrace  the  date 
of  the  consummation  of  such  treaties,  as  well  as  the  particu- 
lar rights  secured  or  the  duties  imposed  upon  either  party. ^ 

§1407.  Public  Institutions. —  Institutions  of  a  public 
character  have  in  some  instances  a  double  claim  upon  the 
courts  for  judicial  recognition.  They  are  so  recognized  be- 
cause they  are  established  by  law ;  as  court-houses,  asylums, 
public  prisons,  legall}'  authorized  banks  of  issue,  and  the 
hke.^  They  may  also  challenge  notice  on  account  of  their 
publicit}'-,  and  well  knoAvn  situation  and  character.  The 
English  courts  take  judicial  notice  of  the  universities  of 
Oxford  and  Cambridge,  and  also  that  they  were  established 
for  the  advancement  of  religion  and  learning.'  Similar 
institutions  in  this  country  might  also  be  taken  notice  of 
judicially,  as  belonging  to  the  history  of  the  country  or  for 
the  reason  that  their  existence  is  notorious. 

§  1408.  Local  Customs,  and  Special  and  Private  Stat- 
utes.—  Customs  are  only  judicially  noticed  when  so  general 
in  their  character  as  to  be  universally  known.  Purely  local 
customs,  even  those  prevalent  among  the  Indian  tribes,  have 
been  ignored,  when  it  was  sought  to  bring  them  to  the  at- 
tention of  the  courts,  otherwise  than  by  pleading  and  evi- 
dence.^ The  rules  of  a  board  of  brokers,  not  amounting  to 
a  general  usage  of  trade,'  and  the  laws  and  customs  of  a 
church  organization,  have  been  excluded  from  judicial  no- 
tice as  not  possessing  sufficient  general  interest  or  notoriety 
to  be  entitled  to  recognition  by  the  courts,  although  they 
might  be  quite  generally  known  in  the  locality.^    There 

1  Carson  v.  Smith,  5  Minn.,  78 ;  Dale  v.  "Wilson,  16  Minn.,  525. 

2  Shaw  V.  The  State,  3  Sneed,  86. 

3  Oxford  Rate,  8  El.  &  Bl.,  184. 

<  Turner  v.  Fish,  28  Miss.,  306;  Dutch,  etc.,  Co.  v.  Mooney,  12  CaJ., 
534;  Sullivan  v.  Hense,  2  Colo.,  424. 

5  Goldsmith  v.  Sawyer,  46  Cal.,  209. 

6  Sarahass  v.  Armstrong,  16  Kan.,  192 ;  Youngs  v.  Ransom,  31  Barb.,  49. 


710  FACTS   or   WHICU    COUETS   TAKE   JUDICIAL   NOTICE. 

are,  however,  many  facts  to  be  noticed  hereafter  as  histor- 
ical, geographical,  etc.,  of  which  courts  have  taken  notice, 
upon  grounds  less  satisfactory  than  \yould  justify  a  similar 
recognition  of  some  local  customs.  Courts  will  not,  in  gen- 
eral, take  notice  of  private  acts  of  the  legislatm-e.^  They 
will  not,  on  demurrer,  look  beyond  the  record  to  ascertain 
the  provisions  of  such  an  act  when  referred  to  only  by  its 
date  and  title.^  An  act  of  assembly  authorizing  a  certain 
railroad  company  to  guarantee  the  bonds  of  any  incorpo- 
rated company,  individual  or  firm  engaged  in  manufactur- 
ing, in  any  county  through  which  the  company's  road 
should  pass,  was  held  to  be  a  private  act,  of  which  the  court 
would  not  take  judicial  notice.^  Legislative  enactments 
establishing  corporations  will  only  be  judicially  noticed  when 
declared  to  be  pubhc  acts ;  and  this  declaration  will  be  in 
the  act  itself.^  When  not  so  designated  they  are  generally 
regarded  as  private  or  special  acts,  from  the  natm'e  of  the 
subject  of  legislation,  and  the  private  interests  thereby 
promoted;  and  when  so  classified  will  not  be  taken  judicial 
notice  of  even  by  the  courts  of  the  state  by  whose  legis- 
lature they  were  enacted.* 

§  1409.  Municipal  Ordinances. —  The  same  is  true  of  the 
ordinances  of  municipal  corporations,  when  their  provis- 
ions are  at  issue  in  courts  of  superior  jurisdiction.^    But  in 

1  Workingmen's  Bank  v.  Converse,  33  La.  An.,  963, 

2 Broad  Street  Hotel  Co.  v.  Weaver,  57  Ala.,  26.  But  see  Halbert  v. 
Skyles,  1  A.  K.  Marsh.,  368;  Collier  v.  Baptist,  etc.,  Society,  8  B.  Monr., 
68;  Legrand  v.  Hampden  Sidney  CoUege,  5  Munf.,  324,  The  manner  of 
pleading  private  statutes  is  regulated  by  statute. 

3  Timlow  V.  Philadelphia,  etc.,  R.  Co.,  99  Pa,  St.,  284, 

4 Butler  V.  Robinson,  75  Mo.,  193.  But  the  expiration  of  a  bank  char- 
ter has  been  judicially  noticed.  Terry  v.  Merchants',  etc.,  Bank,  66  Ga., 
177. 

5  Allegheny  v.  Nelson,  25  Pa.  St.,  332;  Drake  v.  FleweUen,  33  Ala., 
106;  "Winnipiseogee  Lake  Co.  v.  Young,  40  N,  H.,  420;  Atchison,  etc., 
E.  Co,,  V.  Blackshu-e,  10  Kan.,  477;  DanvUle,  etc.,  Co.  v.  The  State,  IG 
Ind.,  456;  Hailes  v.  State,  9  Tex.  App.,  170. 

6Mooney  v.  Kennett,  19  Mo.,  551;  Garvin  v.  WeUs,  8  Iowa,  286; 
Luckin  v.  The  Commonwealth,  4  Bush,  440;  Horace  v.  Chicago,  etc.,  R. 


FACTS   OF   WHICH    COURTS   TAKE   JUDICIAL   NOTICE.         711 

trials  before  the  mayor  or  other  judicial  officer  of  a  city, 
notice  may,  and  probably  shoidd,  be  taken  of  the  oixiinances 
of  the  municipality.^  And  where  a  prosecution  for  the  vio- 
lation of  such  ordinances  was  appealed  from  the  police 
judge  of  a  city  to  the  district  court,  it  was  held  that  even 
the  latter  court  might,  for  the  purposes  of  that  action,  take 
judicial  notice  of  the  incorporation  of  such  city  and  its  or- 
dinances.- The  enactments  of  boards  of  county  commis- 
sioners fall  within  this  rule.  Hence  where  the  boundaries 
of  a  township  were  established  by  the  authority  of  such  a 
board ; '  or  public  ferries  were  by  them  authorized  in  the  ex- 
ercise of  a  power  with  which  they  were  clothed  by  statute ;  * 
or  where,  pursuant  to  the  general  law,  they  newly  divided 
certain  counties  and  erected  new  ones,*  such  acts  could  only 
appear  by  pleading  and  proof,  though  the  law  of  the  state 
under  which  they  acted  was  a  public  statute,  and  as  such 
entitled  to  judicial  notice.  In  one  or  two  of  the  states, 
however,  the  rule  seems  to  be,  that  while  the  courts  will  not 
take  notice  of  private  acts,  they  are  not  required  to  be 
pleaded.^ 

§  1410.  Geographical  Facts. —  There  are  certain  geo- 
graphical facts  of  which  courts  will  take  judicial  notice,  for 
the  reason  that  they  are  universally  recognized,  or  are 
within  the  territorial  jurisdiction  of  the  court.  Thus,  in 
Indiana,  the  position  of  the  falls  of  the  Ohio  river  have 
been  so  noticed,  in  connection  with  the  fact  that  pilots  for 

Co.,  38  Wis.,  463;  New  Orleans  v.  Labott,  33  La.  An.,  107;  Chicago,  etc., 
R.  Co.  V.  Klauber,  9  111.  App.,  613;  People  v.  Buchanan,  1  Idaho  (N.  S.), 
681. 

iLaporte  City  v.  Goodfellow,  47  Iowa,  572;  State  v.  Leiber,  ll>Iowa, 
407. 

2 Solomon  v.  Hughes,  24  Kan.,  211. 

3  Bragg  V.  Rush  County,  34  Ind.,  406;  Indianapolis,  etc.,  R.  Co.  v. 
CaldweU,  9  Ind.,  397. 

<  State  V.  Wise,  7  Ind.,  645. 

5 Buckinghouse  v.  Gregg,  19  Ind.,  401. 

•"Bhss  on  Code  PI.,  §  183,  n.  2,  citing  Legi-and  v.  Hampden  Sidney  Col- 
lege, 5  Munf.  (Va.),  324;  Collier  v.  Baptist,  etc.,  Soc'y,  8  B.  Mon.,  68; 
Il^l'jcrt  V.  Skyles,  1  A.  K.  Marsh.,  368. 


712  FACTS   OF   WHICH    COURTS   TAKE   JUDICIAL   KOTICE. 

■QQ  other  falls  were  appointed  in  that  state ;  ^  also  the  divis- 
ion of  land  into  sections,  and  the  direction  from  one  quar- 
ter-post to  another.-  So  the  boundary  lines  of  counties  have 
been  noticed,  as  well  to  determine  what  towns  were  included 
as  to  ascertain  their  area.^  But  in  respect  to  the  location  of 
towns,  and  the  boundaries  of  counties,  the  rule  is  by  no 
means  uniform.  Thus,  though  it  is  decided  in  Texas  that 
the  court  would  take  judicial  notice  that  Galveston  was 
Avithin  a  county  of  the  same  name ;  *  that  a  certain  town 
was  within  a  certain  county,  where  the  fact  was  recognized 
by  a  public  statute ;  ^  and  that  a  town  is  situated  in  a  county 
of  which  it  is  the  seat  of  government ;  ^  the  courts  of  the 
same  state  will  not  take  notice  of  the  situation  of  all  named 
locaUties  within  particular  counties.''  ISTor  will  the  location 
of  towns,  within  the  boundaries  of  a  particular  county,  be 
judicially  noticed  in  every  instance  by  the  courts  of  Georgia.^ 
Pubhc  policy  requires  that  the  comets  should  recognize  the 
fact  that  certain  lands  are  within  the  Indian  reservation." 
So,  in  Alabama,  the  court  took  notice  that  certain  real  es- 
tate embraced  in  the  district  of  lands  for  sale  at  Cahawba, 
was  in  that  state ;  ^'^  and  that  Mobile  belonged  to  a  certain 
chancery  district."  The  United  States  supreme  court  will 
take  judicial  notice  that  by  law  the  country  is  divided  into 
collection  districts  for  revenue  purposes,  and  that  such  dis- 

I  Cash  V.  Auditor,  7  Ind.,  227. 
2Mossman  v.  Forrest,  27  Ind.,  283. 

3  Ham  V.  Ham,  39  Me.,  3G3;  The  State  v.  Jackson,  39  Me.,  291;  Board 
of  Com'rs,  etc.,  v.  Spitler,  13  Ind.,  235;  Indianapolis,  etc.,  R.  Co.  v. 
Moore,  16  Ind.,  43;  Solyer  v.  Romanet,  52  Tex.,  562;  Hoffman  v.  State, 
12  Tex.  App.,  406;  State  v.  Reader,  60  Iowa,  527;  Indianapolis,  etc.,  R. 
Co.  V.  Stephens,  28  Ind.,  429. 

4  Solyer  V.  Romanet,  52  Tex.,  562. 

5  Hoffman  v.  State,  12  Tex.  App.,  406. 
«  Carson  v.  Dalton,  59  Tex.,  500. 

7  Boston  V.  State,  5  Tex.  App.,  383. 

8  Clayton  v.  May,  67  Ga.,  769. 

9  French  v.  Lancaster,  2  Dak.,  346. 
10 King  V.  Kent,  29  Ala.,  542. 

II  Alabama  Gold  Life  Ins.  Co.  v.  Cobb,  57  Ala.,  647. 


FACTS    OF    WHICH    C.iUKTS   TAKE    JUDICIAL   NOTICE.  713 

tricts  have  defined  geographical  boundaries.^  Such  promi- 
nent features  of  the  geography  of  the  country  as  the 
situation  of  large  cities,  the  great  lakes,  mountains,  rivers 
and  the  boimdaries  of  states  are  matters  that  claim  the 
attention  of  courts;  but  it  was  necessary  at  one  time 
for  a  court  of  last  resort  to  decide  the  mooted  question, 
whether  the  courts  of  Missouri  should  take  judicial  no- 
tice of  the  fact  that  that  state  was  east  of  the  Rocky 
Mountain S.2  The  following  facts  have  been  judicially  no- 
ticed, on  account  of  their  geographical  prominence:  The 
distance  between  well  known  points  by  the  usual  routes  of 
travel,^  and  in  one  case  the  ordinary  speed  of  railroad  trains 
between  such  points;"*  that  a  portion  of  a  public  road 
between  two  points  lay  within  a  certain  county ;  ^  the  rela- 
tive situations  of  a  city  and  a  river ;  ®  the  fact  that  a  partic- 
ular river  did  not  lie,  throughout  its  entire  length,  in  one 
state ;  ^  the  navigability  of  large  streams ;  ^  and  in  the  ad- 
miralty courts,  judicial  notice  was  not  only  taken  of  the 
situation  of  a  foreign  town,  with  reference  to  a  certain 
river,  but  it  was  also  noticed  that  a  bar  formed  in  the 
mouth  of  the  river,  over  which  vessels  of  a  certain  draught 
could  not  pass.^  There  are  certain  other  geographical  feat- 
ures that  are  not  noticed  by  all  the  courts,  for  the  reason 

1  United  States  v.  Jackson,  104  U.  S.,  41. 

2 Price  V.  Page,  24  Mo.,  65. 

spearce  v.  Long-fit,  101  Pa.  St.,  507;  47  Am.  Rep.,  737;  Rice  v.  Mont- 
gomery, 4  Biss.,  75 ;  Fabyan  v.  Russell,  38  N.  H.,  84. 

^Pearce  v.  Longfit,  101  Pa.  St.,  507. 

5 Indianapolis,  etc.,  R.  Co.  v.  Case,  15  Ind.,  2;  Indianapolis,  etc,  R. 
Co.  V.  Para  more,  12  Ind.,  406. 

6 City  Council,  etc.,  v.  Montgomery,  etc.,  Co.,  31  Ala.,  76;  Winnipis- 
eogee  Lake  Co.  v.  Young,  40  N.  H.,  420. 

^Cummingsv.  Stone,  13  Mich.,  70. 

8  Wood  V.  Fowler,  26  Kan.,  682;  40  Am.  Rep.,  330;  Neardhouser  v. 
State,  28  Ind.,  257. 

9  The  Peterhoff,  Blatch.  Prize  Cas.,  463.  At  one  time  the  Texas 
courts  refused  to  take  judicial  notice  of  the  fact  that  the  cities  of  New 
York  and  New  Orleans  were  not  in  the  state  of  Texas.  Wliitlock  v. 
Castro,  22  Tex.,  108;  Russell  v.  Martin,  15  Tex.,  238. 


714  FACTS    OF    WHICH    COURTS   TAKE    JUDICIAL   NOTICE. 

that  they  are  onl}^  notorious  within  very  narrow  limits.  To 
claim  undisputed  attention  of  the  courts,  geographical  facts 
should  be  historical  and  traditional  within  the  district  where 
brought  in  question,  or  of  such  prominence  as  to  raise  the 
presumption  that  they  are  generally  known.  Hence  the 
capacity  for  navigation  of  "  Five-Mile  Run,"  in  Cattaraugus 
count}'^,  ISTew  York,  Avas  held  to  be  a  fact  of  which  the  court 
Avould  not  take  judicial  notice.^  So  the  court  refused  to 
take  notice  of  tlie  distance  between  the  seat  of  government 
and  a  particular  mining  location ;  -  and  of  the  locality  of 
tlie  office  of  a  particular  justice  of  the  peace,  and  that  a 
particular  number  on  a  certain  street  was  in  a  given  ward  or 
district  of  a  city.^  In  this  connection,  the  case  of  People  v. 
Callahan  *  is  illustrative  of  the  result  of  asking  too  much  of 
the  court  in  the  way  of  judicial  notice  of  local  geographical 
facts.  The  court  very  properly  refused  to  take  notice  of 
the  locahty  of  the  streets  and  avenues,  and  their  tennini, 
and  the  houses  situated  thereon.  For  like  suflDcient  and 
obvious  reasons,  the  courts  of  Illinois  Avould  not  take  notice 
of  the  intersection  of  a  street  Avith  a  certain  railroad  track.^ 
Nevertheless,  such  matters  as  these  may  be  brought  to  the 
attention  of  the  court  in  such  a  manner  as  to  bring  them 
within  the  classification  of  geogra])hical  facts  to  be  judiciall}" 
noticed.  Thus  where  certain  streets  of  the  city  of  San 
Francisco  Avere  designated  on  the  official  map  of  the  city,  it 
was  held  that  the  court  was  not  only  bound  to  take  judicial 
notice  of  such  streets,  where  marked  on  a  diagram  filed  in  the 
case,  but  also  of  the  relations  of  such  streets  Avith  each  other 
and  the  directions  in  Avhich  they  run.^  The  rule  in  England 
as  to  geogra]3hical  facts  of  Avhich  the  courts  take  judicial 
notice  is  much  the  same  as  in  this  country ;  a  distinction 

1  Buffalo  Pipe  Line  Co.  v.  New  York,  etc.,  R.  Co.,  10  Abb.  N.  C,  107. 

2  Russell  V.  Hoyt,  4  Mont.,  413. 

3  Allen  V.  Scharringhausen,  8  Mo.  App. ,  229. 

4  60  How.  Pr.,  372;  23  Hun,  581. 
^Pennsylvania  Co.  v.  Frana,  13  lU.  App,,  91. 
6  Brady  v.  Page,  59  Cal.,  52. 


FACTS    OF   WHICH    COtTRTS   TAKE   JUDICIAL   NOTICE.         715 

which  would  probably  obtain  here  is  there  made  between 
courts,  as  to  the  relation  of  their  jurisdiction  to  the  geo- 
graphical features  in  question.  The  courts  generally  are 
required  to  notice  such  facts  as  that  the  colony  of  Yictoria 
is  abroad,  or  beyond  seas ;  ^  and  that  a  place  lies  east  or  west 
of  Greenwich.-  So  where  an  act  gave  jurisdiction  to  justices 
of  a  county,  and  an  order  was  made  under  it  by  the  justices, 
who  described  themselves  as  justices  "  in  and  for  the  said 
city,"  it  was  held  that  the  court  would  take  notice  that  the 
city  was  also  the  county.'  Upon  tlie  other  hand,  the  courts 
refused  to  notice  that  a  particular  street  Avas  not  in  a  cer- 
tain county,  although  the  fact  was  quite  generally  known 
in  the  community,^  and  also  whether  particular  places  were 
Avithin  certain  counties.^  JSTevertheless  it  was  held  that  the 
courts  of  quarter  sessions  should  take  judicial  notice  of  the 
petty  sessional  divisions  in  their  counties.'' 

§  1411.  Historical  Facts,  Incorporation  of  Towns, 
etc. —  In  a  preceding  section  we  have  called  attention  to 
the  unwillingness  of  the  courts  to  take  judicial  notice  of 
private  or  local  statutes,  and  the  exceptions  to  the  general 
doctrine.'  "We  have  seen  that  except  where  a  statute  is 
declared  by  the  legislature  to  be  public,  and  it  refers  to 
private  or  local  interests,  such  as  acts  of  incorporation  and 
the  hke,  the  courts  will  require  them  to  be  established  by 
pleading  and  proof,  or  at  least  by  proof,  where  they  are  not 
required  to  be  pleaded.  Nevertheless  there  are  certain 
legislative  acts  of  a  private,  special  or  local  character,  of 
which  the  courts  seem  inclined  to  take  judicial  notice  in  an 
indirect  manner,  on  account  of  the  historical  prominence 
of  the  facts  in  which  they  result,  even  where  they  are  not 

1  Cooke  V.  Wilson,  2  Jur.,  N.  S.,  1094;  1  C.  B.,  N.  S.,  153. 

2 Curtis  V.  Maich,  4  Jur.,  N.  S.,  1112. 

3  Reg.  V.  St.  Maurice,  16  Q.  B.,  908. 

*  Humphreys  v.  Budd,  5  Jur.,  630. 

5Bi-une  V.  Thompson,  2  Q.  B.,  789;  2  G.  «&  D.,  110. 

eReg.  V.  Whittles,  13  Q.  B.,  248. 

^  Supra,  §  1408. 


716  FACTS   OF   WHICH   COUKTS   TAKE   JUDICIAL   NOTICE. 

declared  to  be  public  acts.  Thus,  where  it  appeared  in  the 
record  of  a  case  that  a  certain  town  had  assumed  to  act  as 
an  incorporated  village,  and  an  offense  was  charged  as  hav- 
ing been  committed  within  its  corporate  limits,  the  court 
took  notice  of  its  incorporation.^  So  in  Virginia  it  is  held 
that  in  an  action  against  a  railroad  company  by  name,  the 
court  would  so  far  take  notice  of  the  fact  that  defendant 
was  a  corporation  that  the  allegation  need  not  be  made  in 
the  pleadings,  nor  proof  offered  in  support  thereof,  unless 
its  incorporation  were  denied  under  oath.-  But  elsewhere 
it  is  decided  that  the  courts  would  not  take  notice  of  the 
fact  that  the  inhabitants  of  a  particular  town  or  district  had 
availed  themselves  of  the  provisions  of  a  general  law,  to  be- 
come incorporated.^  There  are  prominent  historical  facts, 
however,  which  are  more  uniformly  and  consistently  noticed 
by  the  courts.  For  example,  the  actual  destruction  of  the 
institution  of  slavery,  as  a  result  of  the  late  civil  war,  prior 
to  the  adoption  of  the  constitutional  amendment  by  which 
it  was  abolished,  or  any  legislation  to  that  end,  was  recog- 
nized as  a  fact  of  history.*  The  existence  of  this  war, 
together  with  most  of  the  prominent  events  that  marked 
its  origin  and  progress  from  1861  to  1865,  have  been  ju- 
dicially noticed.^  Thus  the  actual  termination  of  armed 
resistance  to  the  general  government,  though  not  marked 
by  anything  corresponding  to  a  treaty  of  peace,  has  been 
so  noticed,  and  that  hostilities  ceased  prior  to  the  1st  day 
of  June,  1865,  so  that  the  regular  transmission  of  mails  be- 
tween points  within  the  section  theretofore  known  as  hostile 
to  the  general  government,  was  resumed  prior  to  the  18th 
day  of  December  of  that  year.^  So,  as  an  incident  of  the 
war,  judicial  notice  was  taken  that "  dollars  "  of  Confederate 

1  Doyle  V.  Bradford,  90  111.,  416. 
2 Baltimore,  etc.,  E.  Co.  v.  Sherman,  30  Gratt.,  602. 
3 Hopkins  v.  Kansas  City,  etc.,  E.  Co.,  79  Mo.,  98;  Temple  v.  State,  15 
Tex.  App.,  304;  49  Am.  Eep.,  200. 
4 Ferdinand  v.  The  State,  39  Ala.,  706. 
5Cuylerv.  Ferrill,  1  Abb.  (U.  S.),  169.     ' 
e Turner's  Adm'r  v.  Patton,  49  Ala.,  406. 


FACTS    OF    WHICH    COURTS    TAKE    JUDICIAL   NOTICE.  717 

money  were  of  different  value  from  money  of  the  same 
denomination  recognized  by  the  United  States;'  and  in 
Georgia,  "  Sherman's  march  to  the  sea,"  and  the  date  when 
it  occurred,  were  judicially  noticed.-  The  farthest  advance 
made  by  an}^  court,  towards  usurpation  of  the  province  of 
both  the  lawyer  and  the  jury,  in  order  to  arrive  at  con- 
clusions without  judicial  inquiry,  was  where  the  supreme 
court  of  Alabama  took  notice  of  the  fact  that  in  the  years 
immediately  following  the  war,  the  people  of  that  state 
were  suffering  from  great  pecuniary  embarrassment  and 
insolvency,  and  that,  in  consequence,  it  may  have  been 
extremely  difiBcult  for  a  guardian  to  discharge  his  duty  to 
his  Avards.^  This  case  is  confronted  by  another  from  a 
neighboring  state,  where  a  more  notorious  fact  of  history, 
belonging  to  the  same  series  of  events,  was  ignored.  This 
was  the  firing  upon  Fort  Sumter,  in  1861.*  So  in  Tennes- 
see the  relative  positions  of  the  two  armies  Avas  not  judi- 
cially noticed  in  one  case.'^  The  court  of  claims  took 
judicial  notice  of  Fremont's  public  career  in  California,  as 
a  matter  embraced  in  the  histor}^  of  the  country."  So  the 
supreme  coui't  of  Indiana  will  notice  all  facts  of  general 
importance  connected  with  the  history  of  that  state,  and 
of  its  topography  and  condition.'^  So,  also,  will  the  Illinois 
courts  recognize,  the  population  of  a  county,  according  to 
the  census,  for  the  puqiose  of  classifying  it  under  the  con- 
stitutional provision  regulating  the  fees  of  clerks  of  circuit 
courts.^  The  separation  of  a  church  into  two  branches,  one 
''north"  and  one  "south,"  has  been  regarded  of  sufficient 
historical  importance  to  entitle  it  to  judicial  notice.*     So, 

1  Keppel's  Adm'rs  v.  Petersburg  R.  Co.,  Chase's  Dec,  167. 

nVilliams  v.  State,  67  Ga.,  260. 

3  Ashley's  Adm'x  v.  Martin,  50  Ala.,  537. 

♦Bishop  V.  Jones,  28  Tex.,  294. 

sKelley  v.  Storey,  6  Heisk.,  202. 

«De  CeUs  v.  United  States,  13  Ct.  of  CI,  117. 

7  Williams  v.  State,  64  Ind.,  553. 

8  Worcester  Bank  v.  Cheney,  94  III,  430. 
*  Humphrey  v.  Burnside,  4  Bush,  215. 


718  FACTS   OF    WHICH    COURTS    TAKE    JUDICIAL   NOTICE. 

the  political  and  social  condition  of  a  state,'  though  it  can 
only  be  in  respect  to  very  striking  and  well-known  features 
of  such  condition,  as  in  the  case  last  cited,  that  the  principal 
industry  of  the  state  was  mining,  and  that  large  portions  of 
the  land  were  mineral  in  character  and  belonged  to  the 
government  of  the  United  States.^  It  was  also  judicially 
noticed  as  a  historical  fact  that  in  times  past  the  court  was 
held  in  a  certain  place,  and  the  times  when  it  was  so  held.* 
It  has  been  laid  down  that  the  facts  of  history  of  which 
judicial  notice  will  be  taken  on  appeal  are  only  such  as  are 
of  general  notoriety,  and  of  interest  to  the  people  of  the 
entire  state.'*  It  seems  consistent  with  this  rule  of  confining 
attention  to  matters  of  interest  to  the  state,  that  in  Texas, 
where  the  common  law  was  not  adopted,  the  court  refused 
to  take  judicial  notice  of  its  adoption  in  other  states.'^  Such 
matters  as  the  division  of  the  state  into  judicial  and  con- 
gressional districts;^  into  counties,  etc.,''^  and  the  counties 
into  townships  or  other  subordinate  political  divisions,^  will 
be  judicially  noticed  as  part  of  the  public  legislation  of  the 
state,  or  they  may  be  so  noticed  as  geographical  or  historical 
facts.  Tlie  courts  of  Indiana  are  bound  to  take  notice,  as 
part  of  its  history,  as  well  as  the  result  of  its  law^s,  that 
during  and  since  the  civil  war,  the  adjutant-general  has 
made  records  of  the  muster  rolls  of  the  regiments  furnished 
the  United  States.^ 

1  Lewis  V.  Harris,  31  Ala.,  689;  Irwin  v.  Phillips,  5  Cal.,  140. 

2 Irwin  V.  Phillips,  5  Cal.,  140. 

3  Ross  V.  Austin,  3  Cal.,  183. 

nicKinnonu.  Bhss,  21  N.  Y.,  206. 

SBradshaw  v.  Mayfield,  18  Tex.,  21. 

6  United  States  v.  Johnson,  2  Sawyer,  482 ;  The  People  v.  Eobinson,  17 
Cal.,  363. 

"  Buckinghouse  v.  Gregg,  19  Ind.,  401;  La  Grange  v.  Chapman,  11 
Mich.,  499;  Martin  v.  Martin,  51  Me.,  366:  Woodward  v.  Chicago,  etc., 
R.  Co.,  21  Wis.,  309;  Hinckley  v.  Beckwith,  23  Wis.,  328;  Cook  v.  Tall- 
man,  40  Iowa,  133. 

8 State  V.  Powers,  25  Conn.,  48;  Kidder  v.  Blaisdell,  45  Me.,  461; 
Wright  V.  Dunham,  13  Mich.,  414;  Treasurer  v.  Bishop,  39  Vt.,  353. 

9 Monroe  County  Com'rs  v.  May,  67  Ind.,  562. 


FACTS    OF    WHICH    COURTS   TAKE   JUDICIAL   NOTICE.  719 

§1412.  Election  and  Appoiiitmeut  of  Offieers. —  AVhen 
it  is  laid  down  as  a  general  principle  that  courts  wiU  take 
judicial  notice  of  the  officers  chosen  at  a  general  election,  it 
is  not  to  be  understood,  where  the  election  of  a  particular 
contestant  is  the  matter  at  issue,  that  the  court  will  take 
judicial  notice  of  the  ultimate  fact,  and  thus  end  the  con- 
troversy. In  taking  notice  of  the  law  authorizing  the  elec- 
tion, there  is  no  admixture  of  fact  to  distinguish  this  from 
other  public  statutes.  But  it  is  the  action  taken  under  the 
statute  that  the  court  recognizes  when  it  takes  notice  of  the 
holding  of  the  election,  the  officers  chosen,  and  their  terms 
of  office.'  Hence  the  court  is  supposed  to  know  who  is  the 
chief  executive  of  the  state  or  nation,  also  who  fill  the  other 
offices,  the  incumbents  of  which  were  required  to  be  chosen 
at  a  general  election,  by  reason  of  the  judicial  notice  taken 
of  the  result  of  the  election  and  the  duration  of  the  official 
terms.'-  Judicial  notice  will  also  be  taken  of  the  appointment 
of  officers,'  when  that  is  the  mode  of  selection  provided  by 
law.  But  courts  will  not  take  notice  of  the  official  char- 
acter of  any  person  claiming  to  act  in  that  capacity,  unless 
the  office  be  one  of  those  mentioned  in  the  statute  or  au- 
thorized by  law."*  It  is  held  that  the  appellate  court  will 
take  notice  of  who  are  the  judges  of  subordinate  courts 
within  the  same  jurisdiction.'^  So  that  the  trustee  of  the 
civil  township  is  also  trustee  of  the  school  township.®    It 


1  State  17.  Merrick,  15  Iowa,  123;  Ellis  v.  Reddin,  12  Kan.,  306;  Davis 
V.  Best,  2  Iowa,  96 ;  Ragland  v.  Wynn,  37  Ala. ,  32 ;  Alexander  v.  Bum- 
ham,  18  Wis.,  199;  Himmelman  v.  Hoadley,  44  Cal.,  213. 

2  Wells  V.  Jackson,  etc.,  Co.,  47  N.  H.,  283;  Dewes  v.  Colorado  Co.,  32 
Tex.,  570;  Hizer  v.  The  State,  12  Ind.,  330:  Ingraham  v.  The  State.  27 
Ala..  17;  Ragland  v.  Wynn,  37  Ala.,  32:  Fancher  v.  De  Montegre,  1 
Head,  40;  Fox  v.  Commonwealth,  81  Pa.  St.,  511. 

3  Burnett  v.  Henderson,  28  Tex.,  588;  People  v.  Lyman,  2  Utah,  30. 
<  Alford  V.  State,  8  Tex.  App.,  545. 

5  Kilpatrick  v.  The  Commonwealth,  31  Pa,  St.,  198 ;  Ex  parte  Peterson, 
33  Ala.,  74 ;  Graham  v.  Anderson,  43  HI.,  514.  But  see  Russell  v.  Sargent, 
7  111.  App.,  98. 

^Inglis  V.  State,  61  Ind.,  313. 


720  FACTS   OF   "WHICH   COURTS   TAKE   JUDICIAL   NOTICE. 

may  fairl}'-  bo  doubted  whether  the  local  courts  of  one  por- 
tion of  the  state  would  be  required  to  take  notice  of  all  the 
subordinate  officers  chosen  at  a  general  election  in  other 
portions  of  the  state,  Tvithout  resorting  to  some  means  of 
ascertaining  the  very  truth  of  the  fact,  even  where  the  prin- 
ciple of  judicial  notice  went  so  far  as  to  dispense  with  aver- 
ment in  the  pleadings  and  proof  by  the  ordinary  methods. 
It  could  hardly  be  supposed  that  the  presiding  judge  or 
justice  would,  as  a  matter  of  fact,  be  acquainted  with  the 
persons  of  each  officer  so  chosen  throughout  the  state.  But 
circuit  courts  take  notice  of  the  officers  of  the  county 
where  the  court  is  in  session.'  This  is  particularly  true  of 
officers  of  the  court,  as  sheriff  and  clerk.-  So  the  state 
courts  are  bound  to  know  the  officers  of  federal  courts  within 
the  state,*  and  have  even  recognized  mustering  officers,  who 
were  known  to  the  whole  community  as  in  the  employ  of 
the  general  government.'*  But  the  courts  wull  not,  in  gen- 
eral, recognize  mere  deputies  nor  their  official  acts,  except 
where  they  are  done  in  the  name  of  the  chief  officer.^  It 
is  not  always  the  general  election  and  its  result  which  re- 
quires the  court  to  notice  the  officer.  Notice  has  been  taken 
of  officers  regardless  of  the  manner  in  which  they  were 
selected,  and  even  where  they  came  in  by  succession  on  the 
death  or  removal  of  a  predecessor.''  "When  it  is  remem- 
bered that  judicial  notice  is  not  taken  of  the  election  for 
the  purpose  of  settling  disputes  as  to  who  received  the  ma- 
jority of  votes  cast,  it  will  be  apparent  that  it  is  of  officers 
de  facto,  of  which  the  courts  take  notice,  regardless  of 
whether  they  are  officers  de  jure  or  not.''  Indeed,  so  indif- 
ferent are  the  courts  to  the  results  of  elections,  as  such,  that 

iDyerr.  Flint,  21  lU.,  80. 

2  Thompson  v.  Haskell,  21  Ul.,  215;  Bishop  v.  The  State,  30  Ala.,  34. 

3Buford  V.  Hickman,  1  Hempst.,  232. 

4  Chapman  TownsMp  v.  Herrold,  58  Pa.  St.,  106. 

s  Joyce  V.  Joyce,  5  Cal.,  449;  Ward  v.  Henry,  19  Wis.,  76. 

6  Lindsey  v.  Attorney-General,  33  Miss. ,  508. 

7  The  State  v.  Williams,  5  Wis.,  308;  Clark  v.  Commonwealth,  S9  Pa. 
St.,  129. 


FACTS    OF   WHICH    COURTS    TAKE    JUDICIAL   NOTICE.  7'2\ 

they  have  refused  to  take  notice  of  such  results  when  tlie 
object  was  to  take  the  sense  of  the  community  upon  what 
are  known  as  "  local  option  laws."  The}''  were  not  reco<,'-- 
nized  either  as  laws  or  the  results  of  general  elections.'  But 
the  reason  for  ignoring  such  elections  as  these  or  their  re- 
sults, when  provided  for  by  a  general  statute,  is  not  very 
clear. 

§1413.  Official  Signatures  and  Seals. —  Not  only  will 
courts  take  judicial  notice  of  the  officers  of  the  county 
within  which  they  are  regularly  held,  but  for  many  pur- 
poses they  will  take  notice  of  their  official  signatures.- 
Thus,  the  court  will  recognize,  without  allegation  or  proof, 
the  signature  of  a  clerk  of  a  court  of  record  to  a  tran- 
script ;  ^  the  official  signature  of  the  register  or  recorder  of 
deeds,Mhe  collector  of  levee  taxes,'  and  the  signatures  of 
attorneys  of  the  court.*^  The  signatures  of  state  officers  are 
judicially  noticed,  and  in  one  instance,  at  least,  that  of  the 
deput}'"  auditor-general.^  The  seal  and  signature  to  a  patent 
to  public  lands  of  the  United  States  will  be  judicially 
noticed  by  all  courts,  both  state  and  federal,  without  being- 
pleaded  or  supported  by  evidence  of  their  genuineness.'* 
But  the  doctrine  that  courts  will  take  notice  of  the  signa- 
tures of  officers,  even  of  the  count}'^,  is  subject  to  certain 
qualifications.  Thus,  they  will  uniformly  take  notice  of  the 
signatures  of  clerks  of  courts,  when  such  signatures  are 

1  Johnson  v.  Common  Council,  16  Ind.,  56. 

-Wetherbee  v.  Dunn,  32  Cal.,  106;  Alderson  v.  Bell,  9  Cal.,  315;  Jones 
V.  Galis'  Curax'r,  4  Mart.,  635;  Wood  v.  Fltz,  10  Mart.  (O.  S.),  196;  Fol- 
lain  V.  Lefevre,  3  Rob.  (La.),  13;  Despau  v.  Swindler,  3  Mart.,  N.  S., 
705.  [But  courts  will  not  take  notice  of  the  signatures  of  parties  to 
actions.  Litchfield  v.  Burwell,  5  How.  Pr.,  346;  Alderson  v.  Bell,  9 
Cal.,  315.] 

'  State  V.  Postlewait,  14  Iowa,  446 ;  State  v.  Shilling,  14  Iowa,  455. 

<  Scott  V.  Jackson,  13  La.  An.,  640. 

^Templeton  v.  Morgan,  16  La.  An.,  438. 

^Masterson  v.  Le  Claire,  4  Minn.,  163;  Symmes  v.  Major,  21  Ind.,  443, 

T People  V.  Johr,  22  Mich,,  461. 

8  Yount  V.  Howell,  14  Cal.,  465;  Patterson  v.  Winn,  5  Wheat.,  232. 
46 


7l22  FACTS    OF    "WmCII    COURTS    TAKE   JUDICIAL   NOTICE. 

aiRxed  to  copies  of  the  proceedings  of  the  court,^  while  it 
has  been  doubted  whether  the  signature  of  the  same  officer, 
though  affixed  in  the  line  of  his  duty,  to  a  county  bond, 
would  be  so  recognized.^  Nevertheless,  the  signature  of  a 
county  officer  to  a  tax  deed  was  judicially  noticed  in  Cal- 
ifornia.'* So,  notwithstanding  the  notice  taken  by  the  courts 
of  the  signatures  of  attorneys,  it  is  only  when  the}''  are  used 
in  connection  with  their  professional  duties  as  officers 
of  the  court.^  The  signature  of  a  notary  public  is  also 
noticed  by  the  courts  of  Illinois,  when  he  is  authorized  to 
certify  to  an  oath  without  a  seal.-^  It  goes  without  saying 
that  a  court  will  be  presumed  to  know  the  signature  of  its 
own  clerk.*^  Official  seals  are  more  extensively  noticed  in 
this  manner  than  the  mere  signatures.  Thus  the  national 
seals  of  countries  recognized  by  the  United  States  are 
entitled  to  judicial  recognition.'  So  the  seal  of  a  notary 
public  is  entitled  to  notice  when  used  to  attest  acts  done 
under  the  lex  inercatoria^  but  not  otherwise,  except  as  pro- 
vided by  statute.^ 

§  lil't.  Terms  of  Court  and  Judicial  Proceedings. — 
Appellate  courts  take  judicial  notice  of  subordinate  courts 
within  the  same  territorial  jurisdiction  and  of  their  terms, 
and  the  extent  of  their  jurisdiction  as  prescribed  by  law." 
This,  it  will  be  noticed,  amounts  to  little  else  than  taking 
judicial  notice  of  public  laws ;  but  when  notice  is  taken  of 
the  signatures  of  judges  or  justices  of  subordinate  courts, 

1  Major  V.  The  State,  2  Sneed  (Tenn.),  11. 

-'-  Judge  Bliss  in  2  Cent.  L.  J.,  447. 

3Wetherbee  v.  Dunn,  33  Cal.,  106. 

*Masterson  v.  Le  Claire,  4  Minn.,  163. 

5  Dyer  V.  Flint,  21111.,  80. 

«Buell  V.  State,  72  Ind.,  523. 

7 The  Estrella,  4  Wheat.,  298;  United  States  v.  Palmer,  3  Wheat.,  610. 

8  Bliss  on  Code  Pleading,  §  197;  Pierce  v.  Indseth,  106  U.  S.,  546. 

9 Tucker  v.  The  State,  11  Md.,  323:  Graham  v.  Anderson,  43  111.,  514; 
Pugh  V.  The  State,  2  Head,  227;  Morgan  v.  The  State,  12  Ind.,  448;  Mc- 
Ginnis  v.  The  State,  24  Ind.,  500;  Davidson  v.  Petticolas,  34  Tex.,  27; 
Rodgers  v.  The  State,  50  Ala.,  102;  Meshke  v.  Van  Doren,  16  Wis.,  319; 
Lewis  V.  Wintrode,  76  Ind.,  13. 


FACTS   OF   WHICH    COURTS    TAKE   JUDICIAL   NOTICE.         723 

they  are  so  recognized  as  matters  of  notoriety.'  The  extent 
to  Avhich  one  court  will  take  notice  of  the  rules  of  another 
is  a  little  uncertain.-  It  is  probable  that  a  trial  court  will 
be  required  to  take  notice  of  the  rules  of  the  appellate  tri- 
bunal ;  but  the  converse  of  this  proposition  is  not  generally 
true.  The  rules  of  the  trial  court  are  not  noticed  by  the 
appellate  courts  either  as  public  law  or  matters  of  general 
notoriet3\'  In  one  case,  however,  where  law  and  equity 
were  administered  in  separate  tribunals,  it  Avas  held  that  all 
courts  within  the  jurisdiction  should  take  judicial  notice  of 
the  rules  of  the  court  of  chancery.*  ^Nevertheless,  courts 
are  not  required  to  take  judicial  notice  of  the  rules  or  pro- 
ceedings of  other  courts  of  similar  or  inferior  jurisdiction.* 
Nor  is  a  state  court  required  to  take  notice  that  proceeding's 
in  bankruptcy  have  been  instituted  by  or  against  parties  to 
a  suit  pending  therein.''  But  it  is  otherwise  of  the  rules, 
judgments  and  proceedings  of  the  court,  where  they  are 
relied  on  as  matters  entitled  to  judicial  notice.  Thus  the 
court  would  notice  its  own  judgment  in  a  suit  which  was 
virtually  a  portion  of  the  same  record,''  and  the  existence 
before  a  judge  of  a  court,  of  a  prosecution  for  crime,  against 
one  called  as  a  juror  in  his  court.''  This  rule,  however,  is 
subject  to  certain  modifications.  Thus,  a  circuit  court  sit- 
ting in  one  county  refused  to  take  notice  of  a  nolle  j^roseqiiv 
entered  in  another  county  of  the  same  circuit,  and  its  refusal 
was  approved  by  the  supreme  court  of  the  state.''  The 
mere  fact  that  the  knowledge  of  what  has  transpired  in  the 

'  Supra,  §  1413. 

2  See  and  compare  Contee  v.  Pratt,  9  Md.,  73;  Cherry  v.  Baker,  17  Md., 
75;  Scott  r.  Scott,  17  Md.,  78. 

3  Cherry  v.  Baker,  17  Md.,  75;  Cutler  v.  Caruthers,  48  Cal.,  178;  O'Con- 
nerv.  Koch,  56  Mo.,  259. 

< Contee  v.  Pi-att,  9  Md.,  73. 

5  Vassault  v.  Seitz,  31  Cal.,  225. 

f'Esterbrook  Steel  Pen,  etc.,  Co.  v.  Ahem,  3  N.  J.  Eq.,  341. 

7Farrar  r.  Bates,  55  Tex.,  193. 

8  State  V.  Jackson,  35  La.  An.,  769. 

9 State  V.  Edwards,  19  Mo.,  674. 


724  FACTS   OF   WHICH    COUETS   TAXE   JUDICIAL   NOTICE. 

course  of  a  trial  is  present  with  the  judge,  when  asked  to 
notice  it,  is  not  suflBcient  to  bring  it  "uithin  the  class  of 
facts  that  do  not  require  pleading  or  proof.^  TVhere,  in  an 
action  on  a  recognizance  for  review,  it  appeared  that  the 
reviewer  had  obtained  judgment  for  damages  and  costs,  the 
court  refused  to  take  judicial  notice  that  costs  had  accrued 
subsequent  to  the  judgment.-  So  have  the  courts  refused 
to  take  notice  of  their  own  proceedings  of  record  in  another 
trial,^  or  that  there  was  an)'-  connection  between  the  case  at 
bar  and  one  previously  tried  in  the  same  court.'*  And  where 
an  affidavit  which  had  been  used  in  a  former  case  in  the 
same  court  was  offered  and  admitted,  the  court  refused  to 
take  notice  of  the  facts  of  its  former  use.^  So,  although 
the  judges  of  a  subordinate  court  and  its  attorneys  are 
known  to  the  appellate  court,  the  latter  would  not  take 
judicial  notice  that  the  judge  of  one  of  the  subordinate 
courts,  and  one  of  its  own  attorneys,  was  identically  the 
same  person.^  Judicial  notice  wiU  be  taken  of  the  superior 
courts  of  other  states  of  the  Union  and  also  of  the  United 
States,  and  in  ]^ew  York  of  the  courts  of  the  Dominion  of 
Canada.'^  So  foreign  courts  of  admiralty  and  their  seals 
wiU  be  judicially  noticed  in  this  country ;  ^  but  beyond  this, 
their  existence  must  be  pleaded  and  proved  as  any  other 
foreign  law.^ 

§1415.  The  General  Course  of  Nature.— Courts  are 
presumed  to  know  the  general  course  of  nature,  and  take 
judicial  notice  of  natural  phenomena  which  belong  to  the 
class  that  is  uniform  and  of  general  notoriety.   That  the  day 

1  Wheeler  v.  Webster,  1  E.  D.  Smith,  1. 

2  Brown  v.  Qark,  28  Vt. ,  690. 

3  People  V.  De  La  Guerra,  24  Cal.,  73;  Lake  Merced  Water  Co.  v. 
Cowles,  31  Cal.,  215. 

^  Banks  v.  Bumam,  61  Mo.,  76. 

5  Baker  v.  Mygatt,  14  Iowa,  131. 

6  Ellsworth  V.  Moore,  5  Iowa,  286. 

7  Lazier  v.  Westcott,  26  N.  Y.,  146. 

8 1  Stark,  on  Ev.  (8th  Am.  ed.),  418,  419.    ' 
9  Yrisarri  v.  Qement,  3  Bing.,  438. 


FACTS   OF   WHICH   COURTS   TAKE   JUDICIAL   NOTICE.         725 

follows  the  night  in  consequence  of  the  diurnal  rotation  of 
the  earth;  the  recurrence  of  seasons  in  their  order;  the 
ordinary  computation  of  time,  and  the  like;^  and  conse- 
quently they  will  notice  the  coincidence  of  a  certain  day  of 
the  month  with  a  particular  day  of  the  week.^  So  they  will 
notice  in  connection  with  the  regular  order  of  the  seasons, 
that  for  purposes  of  husbandry  the  use  of  a  farm  is  worth 
much  more  per  acre  during  the  cropping  season  than  for  six 
months,  embracing  the  winter ;  ^  the  hour  at  which  the  sun 
rose  on  a  particular  day ;  *  that  there  are  no  tidal  streams  in 
a  designated  inland  county;  ^  that  there  were  certain  seasons 
during  which  particular  crops  would  mature  in  the  state,^ 
and  also  the  period  of  gestation.^  Where  the  fact  is  not 
only  invariable,  but  universally  known,  or  is  ascertainable 
by  common  and  weU  recognized  authority,  as  the  almanac, 
it  comes  properly  within  the  range  of  judicial  cognizance. 
But  courts  do  not  pretend  to  rely  upon  their  technical 
knowledge  of  all  natural  laws,  nor  wiU  they  always  take 
notice  of  the  existence  of  such  laws  in  which  the  belief  is 
quite  general,  and  supported  by  respectable  authority.  Thus 
the  court  would  not  take  judicial  notice  that  the  age  of  a 
tree  could  be  determined  by  counting  the  concentric  rings 
shown  by  a  section  of  its  trunk.^ 

§  14:16.  Scientific  and  Other  Facts  of  Uniform  Occur- 
rence.—  To  a  certain  extent  the  courts  will  accept,  without 
allegation  or  proof,  facts  of  which  our  knowledge  is  acquired 
by  a  study  of  the  natural  sciences.  Thus,  the  simple  and 
fundamental  rules  of  mathematics,  including  the  axioms  of 

1  Dixon  V.  NiccoUs,  39  111.,  372. 

2Allmanr.  Owen,  81  Ala.,  167;  Sprowl  v.  Lawrence,  33  Ala.,  674; 
Rodgers  v.  The  State,  50  Ala.,  102;  Pliiladelphia,  •tc.,  R.  Co.  v.  Lehman, 
56  Md.,  209;  Mcintosh  v.  Lee,  57  Iowa,  156. 

3  Ross  V.  Boswell,  60  Ind.,  235. 

*  People  V.  Chee  Kee,  61  Cal.,  404. 

5  Walker  v.  Allen,  72  Ala.,  456i 

6  Floyd  V.  Ricks,  14  Ark.,  286. 

7  King  V.  Luffe,  8  East,  193. 
'Patterson  v.  McCausland,  3  Bland,  69. 


72 G  FACTS   OF    WHICH    COURTS    TAKE   JUDICIAL   NOTICE. 

geometry,  would  be  so  noticed.  That  a  section  of  land  con- 
tri/ining  six  hundred  and  forty  acres  was  made  up  of  four 
quarter-sections,  of  one  hundred  and  sixty  acres  each,  ■was 
not  considered  too  abstruse  to  be  entitled  to  judicial  recog- 
nition.^ The  facts  to  be  thus  recognized  can  only  be  selected 
upon  the  principle  that  the  courts  accept  some  of  the  laws 
of  nature  and  reject  others.  There  should  be  universal  ap- 
proval and  notoriety.  But  they  must'  be  governed  to  some 
extent  by  the  state  of  knowledge  of  the  fact  in  the  com- 
munity. Thus,  in  Indiana,  while  the  courts  take  judicial 
notice  that  whisky  is  intoxicating,-  and  refuse  to  recognize 
the  fact  that  wine  is  not  intoxicating,^  they  nevertheless 
hold  that  the  court  cannot  take  judicial  notice  that  common 
brewer's  beer  is  an  intoxicating  beverage.*  In  Common- 
wealth -y.  Peckham  it  is  said :  "  As  well  might  we  require 
proof  that  gin  is  liquid,  as  that  it  was  intoxicating."  ^  And 
yet  the  court  would  probably  not  be  willing  to  take  judicial 
notice  of  the  percentage  of  alcohol  in  this  or  any  other 
kind  of  stimulant.  The  difference  between  the  liquors  above 
mentioned  would  generally  be  regarded  as  only  one  of  de- 
gree. In  Wisconsin  the  intoxicating  nature  of  beer,  as  well 
as  that  it  is  a  malt  liquor,  seems  to  be  more  widely  known 
than  in  Indiana,  and  is  for  that  reason  judicially  noticed.® 
On  nearly  the  same  plane  of  notoriety  as  the  foregoing  in 
reference  to  liquids,  is  the  fact  that  coal  oil  is  inflammable, 
of  which  the  courts  of  Missomi  are  authorized  to  take  judi- 
cial notice ; '  while  in  New  York  they  will  not  take  notice 
that  kerosene  oil  is  a  refined  coal  oil,  or  a  refined  earth  oil ;  ^ 
and  in  Vermont  the  courts  would  not  recognize,  without 
proof  of  the  fact,  the  inflammability  of  gin  and  turpentine, 

1  HiU  V.  Bacon,  43  lU.,  477. 

2  Harman  v.  The  State,  18  Ind.,  450. 

3  Jackson  v.  The  State,  19  Ind.,  313. 

4  Klare  v.  The  State,  43  Ind.,  483. 

5  2  Gray,  514. 

6  Briffitt  V.  State,  58  Wis.,  39;  46  Am.  Rep.,  621. 

7  State  V.  Hayes,  78  Mo.,  307. 

8  Bennett  v.  North  British,  etc.,  Ins.  Co.,  8  Daly,  471. 


FACTS   OF   WHICH    COURTS   TAKE   JUDICIAL   KOTICE.         727 

for  the  purpose  of  avoiding  a  policy  of  insurance.'  "While 
the  court  will  probably  taivc  judicial  notice  of  the  grammar 
of  the  English  language,  including  tlie  ordinary  orthog- 
raphy and  pronunciation  of  words,  the  line  should  be  drawn 
at  proper  names,  for  which  there  is  no  fixed  rule.  In  par- 
ticular will  the  court  refuse  to  take  notice  of  the  orthography 
of  names  in  the  Polish  languao:e." 

§1417.  Facts  Occurring  in  the  (xeneral  Course  of 
Human  Life  —  The  Arts,  etc. —  There  are  other  facts, 
which  have  been  aptly  classified  as  belonging  to  "  the  gen- 
eral course  of  the  transactions  of  human  life,"  and  conse- 
quently such  as  ought  to  be  universally  known,  of  which 
the  courts  will  take  judicial  notice.'  The  example  furnished 
by  the  case  cited  was  the  general  knowledge  of  the  peculiar 
nature  of  lotteries.  And  though  this  doctrine  will  not 
admit  of  indiscriminate  extension  and  application  to  all 
things  which  may  be  regarded  as  common  in  the  commu- 
nity, it  is  unquestionably  proper  for  the  court  to  dispense 
with  proof  of  usages  and  customs  of  business  of  such  an- 
tiquity and  general  use  that  all  men  may  be  fairly  presumed 
to  know  them.*  Thus  it  was  considered  that  it  was  sufR- 
cientl}''  well  known,  for  this  purpose,  that  the  facilities  of 
travel  have  been  greatly  increased  by  steam  navigation  and 
by  railroads ;  ^  that  at  one  time  gold  coin  Avas  no  longer  in 
general  circulation  as  the  money  of  this  country,  but  had 
become  a  commodity  of  tralHc ;  ^  that  business  houses  furnish 
each  other's  clerks  with  goods,  and  charge  them  to  each 
other ;  ^  that,  as  a  general  rule,  trains  running  upon  a  rail- 
road are  run,  directed  and  controlled  by  the  owners  of  the 


•Mosley  v.  Vermont,  etc.,  Ins.  Co.,  55  Vt.,  143. 

2  State  V.  Johnson,  26  Minn.,  316. 

3  BouUement  v.  The  State,  28  Ala.,  83. 
<Munn  V.  Biirch,  25  111.,  35. 

5 Manning  v.  Gasharie,  27  Intl.,  399;  Wiggins  Ferry  Co.  v.  Chicago, 
etc.,  R.  Co.,  5  Mo.  App.,  374. 
^  United  States  v.  American  Gold  Coin,  1  Woolw,,  217. 
•Cameron  v.  Blackman,  39  Mich.,  108. 


728  FACTS   OF   WHICH   COURTS   TAKE   JUDICIAL   NOTICE. 

road/  and  tliat  a  box  freight-car  standing  still  at  a  highway 
crossing  will  not  frighten  horses  of  ordinary  gentleness.-  In 
adjusting  the  rights  of  parties,  courts  will  take  notice  of  no- 
torious changes  in  business  methods  and  of  new  processes 
of  practical  utility  in  facilitating  trade.^  They  have  no 
right  to  assume  ignorance  of  current  phrases  which  every- 
body else  understands.*  Accordingly  the  supreme  court  of 
Maine  recognized  the  initials  "  C.  O.  D.,"  when  affixed  to 
packages  sent  from  seller  to  buyer  by  common  carriers,  as 
a  proper  subject  for  judicial  notice;  that  it  meant  that  de- 
livery is  to  be  made  on  payment  of  the  purchase  price  and 
the  carriers'  charges.^  But  in  Missouri  this  was  regarded 
as  a  question  of  fact  for  the  jury,  and  hence  requiring 
proof.®  It  is  also  held  that  the  courts  will  take  notice  of 
the  term  "  gift  enterprise."  ^  Upon  grounds  of  general  no- 
toriety, the  courts  have  noticed  the  fact  that  the  society  of 
Free  Masons  is  a  purely  charitable  or  eleemosynary  organi- 
zation,^ and  that  "  adm."  was  intended  as  an  abbreviation  of 
''  administrator."  *  So  courts  of  admiralty  have  taken  judi- 
cial notice  of  the  course  of  trade  between  the  West  Indies 
and  certain  ports  of  the  southern  states  of  the  Union  then 
under  blockade ;  ^^  and  in  one  instance  went  the  length  of 
taking  cognizance  of  the  fact  that  a  firm  in  Nassau  had 
been  actively  and  extensively  engaged  in  violating  the  block- 
ade.^^    Judicial  knowledg-e  seems  to  have  been  extended  in 


1  South,  etc..  R.  Co.  v.  Pilgreen,  62  Ala.,  305;  Evansville,  etc.,  E.  Co. 
V.  Smith,  65  Ind.,  92. 

2  Gilbert  v.  Flint,  etc.,  R'y  Co.,  51  Mich.,  488;  47  Am.  Rep.,  593. 

3  Wiggins  Ferry  Co.  v.  Chicago,  etc.,  R.  Co.,  5  Mo.  App.,  374. 

4  Bailey  v.  Kalamazoo,  etc.,  Co.,  40  Mich.,  251. 
estate  V.  Intoxicating  Liquors,  73  Me.,  278. 

•>  McNichol  V.  Pacific  Ex.  Co.,  12  Mo.  App.,  401. 
"Lohmanu.  State,  81  Ind.,  15. 

8  Burdine  v.  Grand  Lodge  of  Alabama,  37  Ala.,  478. 
!'  Moseley  v.  Mastin,  37  Ala.,  216. 

10  The  Mersey,  Blatch.  Prize  Cas.,  187;  The  William  H.  Northrop,  id., 
235;  The  Stephen  Hart,  id.,  387;  The  Peterhoff,  id.,  463. 

11  The  Minna,  Blatch.  Prize  Cas.,  833. 


FACTS   OF   WHICH   COUETS   TAKE   JUDICIAL   NOTICE.         729 

one  case  to  the  value  of  ordinary  labor,^  which  is  probably 
the  uttermost  limit  to  which  the  doctrine  has  been  carried, 
and,  in  view  of  the  numerous  notable  facts  which  other 
courts  have  refused  to  notice,  appears  to  be  a  capricious  ex- 
ercise of  discretion.  The  rules  and  regulations  of  the  depart- 
ments of  the  general  government  would  seem  to  be  peculiarly 
within  the  range  of  judicial  cognizance ;  but  where  it  was 
attempted  to  justify  the  absence  of  original  papers,  in  order 
to  introduce  copies  certified  by  the  surveyor-general  for  Cal- 
ifornia, and  also  by  the  secretary  of  the  United  States  land 
commissioners,  upon  the  ground  that  the  rules  of  the  de- 
partment forbade  the  removal  of  such  originals  from  the 
files  in  the  surveyor-generaPs  office,  the  court  laid  it  down 
broadly  that  judicial  notice  would  not  be  taken  of  the  rules 
adopted  for  the  regulation  of  the  various  departments  of 
the  federal  government,  or  those  established  by  the  board 
of  land  commissioners  or  the  surveyor-general.^  And  yet 
the  rules  and  regulations  of  these  departments,  for  many 
purposes,  have  the  force  and  effect  of  positive  law ;  and  it 
would  seem  that  the  preservation  of  papers  on  file  in  a 
public  office  would  be  peculiarly  within  the  province  of  the 
rule-making  power  of  the  departments.  The  supreme 
court  is  not  bound  to  take  notice  of  the  recording  of  an  in- 
strument in  a  particular  county  merely  because  the  comity 
court  is  required  by  law  to  take  notice  of  it.^  So  the  courts 
have  refused,  more  or  less  capriciously,  to  take  judicial  no- 
tice of  the  depreciation  of  the  cmTency  during  the  late 
war ;  *  that  a  bank  makes  a  profit  by  exchange ;  ^  of  a  local 
custom  entitling  prior  possessors  of  land  to  the  use  of  water 
for  mining  purposes,  etc. ;  ^  that  a  bank  in  a  foreign  state  is 

1  Bell  V.  Burnett,  2  J.  J.  Marsh.,  516. 

2  Hensley  v.  Tarpey,  7  Cal.,  288. 

3  Cicero,  etc.,  Co.  v.  Craighead,  28  Ind.,  374. 
Olodawell  v.  Holmes,  40  Ala.,  391. 

5  Murray  v.  Barney,  34  Barb.,  336. 

6  Lewis  V.  McClure,  8  Oreg.,  273. 


730       FACTS  oi*'  wnicn  courts  take  judiciat.  notice. 

in  an  insolvent  condition ;  ^  the  value  of  Canada  money ; ' 
the  value  of  an  attorney's  services ;  *  the  private  seal  of  the 
governor  of  a  province ;  *  who  were  meant  by  "  black  re- 
])ublicans ; "  ^  the  age  of  a  person  arraigned  for  crime ;  ®  that 
a  railroad  corporation  had  a  seal  other  than  a  scrawl  which 
appeared  to  be  used  for  that  purpose;^  and  the  meaning 
of  a  printer's  private  mark  to  an  advertisement,  thus, 
"  Oct.  3,  4:t,"  as  indicating  th^  date  and  term  of  pubhcation.* 
The  arts  are  also  judicially  noticed  when  the  matter  in 
question  is  not  too  greatly  obscured  by  technicalities.  Thus 
the  art  of  photography,  together  with  the  mechanical  and 
chemical  processes  employed,  the  scientific  principles  on 
which  it  is  based,  and  its  results,  are  noticed  in  a  general 
way.^  The  character,  construction  and  use  of  the  ice-cream 
freezer  has  also  been  included  in  the  class  of  noticeable 
facts.^"  Upon  comparing  the  ruhngs  of  the  courts  upon  this 
subject,  it  will  be  observed  that  they  have  been  guided  by 
no  very  exact  rule.  In  the  main  there  is  good  and  sufficient 
reason  for  their  acceptance  or  rejection  of  a  fact  claimed 
to  be  judicially  cognizable.  But  instances  will  be  found 
where  certain  facts  have  been  so  recognized  On  account  of 
their  notoriety,  which,  if  they  were  taken  as  the  standard, 
would  carry  with  them  some  of  the  others  which  are 
ignored.  So,  too,  are  there  instances,  where  others  are  re- 
jected for  reasons  that  would  apply  equally  well  to  many 
which  are  generally  accepted  as  worthy  of  judicial  notice. 
This  diversity  of  opinion  in  particular  cases  only  partially 

1  Market  Bank  v.  Pacific  Bank,  27  Hun,  465. 
2Kermottt>.  Ayer,  11  IVlich.,  181. 
3  Pearson  v.  Dan-ington,  33  Ala.,  227. 
■t  Beach  v.  Workman,  20  N.  H.,  379. 

5  Baltimore  v.  The  State,  15  Md.,  376. 

6  Stephenson  v.  The  State,  28  Ind.,  273. 

7  Illinois  Cent.  R.  Co.  v.  Johnson,  40  111.,  35. 

8  Johnson  V.  Robertson,  31  Md.,  476. 

9  Lake  v.  Calhoun  County,  52  Ala.,  115. 

10  Brown  v.  Piper,  91  U.  S.,  37. 


FACTS   OF   WHICH   COURTS   TAKE    JUDICIAL   NOTICE.         731 

illustrates  the  difficulty  of  expressing  the  general  doctrine 
in  anything  like  a  rule  that  could  be  uniformly  applied.  Tlio 
knowledge  possessed  by  the  presiding  judge  cannot  furnish 
an  invariable  guide,  either  in  noticing  or  refusing  to  notice 
a  fact.  Certainly  disputed  facts  of  science  should  not  be 
judicially  taken  notice  of,  however  well  convinced  the  judge 
might  be  upon  the  question  of  their  truth. 


INDEX. 


ABANDONJIENT,                                                                        Section 
defeats  notice  by  possession 29G 

ABSENCE  OF  FUNDS, 

held  to  excuse  want  of  notice  of  dishonor  of  commercial 

paper 1001 

held  not  to  excuse  want  of  notice  of  dishonor  of  commer- 
cial paper      1002-1014 

ACCEPTANCE, 

of,  proposals,  notice  of 378-385 

contiiming  and  limited  offers 378 

necessity  of  notice 379 

time 380 

offer  by  auctioneer 381 

by  maU 383 

continuing  until  accepted,  or  rejected,  or  withdrawn      .     .       385 

of  guaranty,  notice  of 390-408 

See  Guaranty. 
of  rent  by  unauthorized  person,  waiver  of  notice  to  quit 

not  presumed  from 649 

of  suiTender  of  possession,  waiver  of  notice  to  quit  .     .     .       643 

ACCEPTOR  OF  BILL, 

notice  of  dishonor  given  by 710,711 

bankruptcy  of,  no  excuse  for  failure  to  give  notice     ...       771 

ACCOIiOIODATION  PAPER, 

notice  of  diversion  of 945 

renewal  of  by  partner,  held  such  prior  transaction  as  to 

entitle  payee  to  notice  of  dissolution 511 

when  drawer  of,  not  entitled  to  notice  of  dishonor    .     .     997, 998 
when  drawer  of,  entitled  to  notice  of  dishonor      .     .     .  999, 1018 

ACCOUNT, 

assignment  of  balance  due  on,  notice  required      ....       443 
notice  should  be  given  of  intention  to  examine     ....     1207 

ACCURACY  OF  DESCRIPTION, 

substantial  and  not  teclinical,  required  in  notice  to  quit      638,  639 
same  in  notice  of  motion 1193 


V3i  INDEX. 

ACKNOWLEDGMENT,  Section 

of  deeds 113 

necessity  of 125-140 

of  service  of  notice,  of  taking  depositions,  effect  of    .      1251,  1254 

ACQUIESCENCE, 

of  principal  after  notice,  releases  agent 669 

ACTUAL  KNOWLEDGE, 

of  prior  rights,  most  direct  manner  of  binding  purchasers    .        65 

question  of  fact  for  tlie  jury 85,  86,  88,  91 

may  be  imputed  to  purchaser  who  avoids  knowledge      .     .        91 

ACTUAL  NOTICE, 

conflict  of  authority  as  to  what  is 1 

causes  of  apparent  conflict,  definitions  of 3 

distinction  between  and  knowledge 3,  4 

different  kinds  of 5 

exi^ress 5-7 

direct  infoi-mation 7 

different  sources  of 28,  29 

must  be  more  than  vague  statement 29 

implied 8-27 

distinction  between  and  express 8 

distinction  between  and  consti'uctive 8,  36a 

will  bind  purchaser,  who  has  not  certain  knowledge     .  9 

from  circumstances  sufficient  to  put  upon  inquuy    .  10,  13-25 

when  purchaser  affected  by 11 

amounts  to  imputation  of  knowledge 11,  13 

neghgence  for  piu-chaser  not  to  inquire 17 

from  secrecy  of  transaction 26 

from  voluntary  ignorance 11 

seeing  copy  of  deed 12 

recitals  in  muniments  of  title 15-17 

possession  under  claim  of  title 16 

held  insufficient 14 

knowledge  of  non-payment  of  i^urchase  price  ....  19 
legal  title  and  equitable  interest  in  different  persons  .  18 
discharge  of  mortgage  by  one  other  than  mortgagee  .  20 
notice  of  trust  affecting  property  pm'chased     ....        21 

insolvency  of  vendor,  acting  as  trustee 22 

inadequacy  of  price  .     .  23,  24 

relationsliip  beween  grantor  and  grantee  ....         25 

from  information  sufficient  to  put  upon  inquuy  .     .     .28,  29 

degree  of  certainty  required 30 

to  agent,  is  actual  notice  to  principal 31-33,  673a 

amounts  to  more  than  constructive  notice  to  principal     .        33 


INDEX.  735 

ACTUAL  ^OTiCE  —  Continued.  Section 

necessary  to  affect  purchasers  of  negotiable  paper  .  .  .  80-94 
payment  of  lost  bill  stopped  by  advertisement,  insufficient  81 
bolder  of  bill  fraudulently  circulated  only  affected  when 

gi'ossly  negligent 82 

negligence  and  bad  faith,  questions  of  fact 83 

purchaser  protected,  rule  laid  down  by  Story  ....  84 
held  same  as  knowledge,  but  knowledge  a  question  of  fact  85 
facts  which  excite  inquiry,  held  inadmissible  in  evidence  86 
purchaser  boiind  to  inquire,  when  facts  excite  inquiry  .  87 
circumstances  sufficient  to  put  a  prudent  man  upon  in- 
quiry, insufficient 87 

bad  faith  on  part  of  purchaser,  inference  of  fact  and  not 

of  law 88,  note  1 

stolen  securities  —  avoidance  of  knowledge 89 

inquiry  excited  by  inspection  of  paper,  sufficient    ...        90 

general  or  implied  notice  held  sufficient 91 

circumstances  must  be  of  suspicious  character  ....        92 
only  purchasers  who  have  paid  value  protected      ...        93 

defects  apparent  on  face  of  instrument 94 

of  viiu-egistered  instruments, 

See  Unregistered  Instruments. 
to  purchasers,  evidenced  by  possession  of  property     .     .     275-277 
See  Possession. 

notice  from  title  papers,  equivalent  to 308 

See  Title  Papers. 
of  assignment  of  choses  in  action,  inferred  from  circum- 
stances   438,  439 

See  Assignment. 
dissolution  of  partnership,  when  new  customer  entitled  to  .       522 
may  be  inferred  from  facts  sufficient  to  put  upon  inquuy  .       507 
See  Dissolution  of  Partnership. 

ACTUAL  POSSESSION, 

when  requisite  to  constitute  notice  of  claim  of  title  .     .    286,  288 

ADDRESS, 

of  notice  of  dishonor  of  commercial  paper 767 

may  be  to  residence  or  place  of  business 890,  891 

of  written  notice  to  quit,  what  sufficient 630 

ADJOURNMENT, 

of  judicial  sale  without  new  publication 1092 

of  taking  depositions,  notice  after  expiration  of  hour  origi- 
naUy  fixed     .     .     .     ^ 1256 

ADMINISTRATOR, 

joint,  when  cannot  waive  notice  of  dishonor 763 


73  G  INDEX. 

ADMISSION,  Section 

■when  it  will  amount  to  waiver  of  notice     ....      1328,  1400 
of  drawer  or  indorser,  when  will  not  excuse  notice    .     .    964,  968 

ADVERSE  POSSESSION, 

notice  of  by  occupation  of  premises 280,  note 

ADVERTISEMENT, 

of  dissolution  of  partnersliip 504r-508,  513-519 

will  only  affect  customer  when  seen  by  Mm 504 

circulation  of  the  paper  where  customer  does  business  not 

sufficient  to  charge  him 505 

reading  papers  not  conclusive 506 

inference  drawn  from  publication  of 507 

what  are  prior  dealings  —  who  is  old  customer  .     .     .     508-512 

will  affect  new  customer 513 

time  of  publication  of       . 514 

publication  of  in  newspaper 515 

where  should  be  published 516 

selection  of  medium  of  publication 517 

manner  of  pubUcation  of,  open  to  inquiry 518 

English  and  American  docti'ine,  publication  held  not  ab- 
solutely essential 519 

of  original  process 1029-1085 

See  Process,  Original. 

of  judicial  sales 1086-1104 

See  Judicial  Sales. 

of  non-judicial  involuntary  sales 1105-1121 

See  Non-judicial  Involuntary  Sales. 

AFFIDAVIT, 

necessary  for  publication  of  notice 1033-1048 

See  Process,  Original. 
for  publication  of  process,  averments  in  not  conclusive  .     .     1083 

AGENCY, 

Notice  of 651-671, 671a 

principal's  liability  when  agent  exceeds  authority  .     .     .  651 

secret  instruction  will  not  limit  general  authority  .     .     .  653 

limited  by  written  authority 653 

by  representations  of  agent,  bind  principal 654 

to  affect  party  dealing  with  agent,  must  be  prior  to  trans- 
action      655 

principal  bound  by  agent's  acts  in  excess  of  authority  by 

letter  of  attorney 656 

by  contents  of  letter  of  attorney 657 

public  and  private  restriction  of  authority 658 

agent's  authority  limited  by  law 659 


INDEX.  737 

AGENCY  —  Continued.  Section 

when  parties  bound  to  inquire  into  extent  of  agent's 

authority 660-6(52 

distinction  between  agency,  general  and  special     .     .     .  66:5 

transactions  requii'ing  scrutiny  of  agent's  authority     .      •  664 

avoidance  of  knowledge  of  limitation  of  agent's  authority  665 

to  negotiate  bills  and  notes 666 

effect  of  subsequent  ratification  with  notice      ....  667 

binds  principal 668 

silent  acquiescence  releases  agent 669 

contracts  in  name  of  agent  binding 670 

principal  bound,  though  concealed  or  revoked  —  husband 

and  wife 671 

must  extend  to  duty  undertaken  to  bind  principal     .     .     .  620 

AGENT, 

acts  of,  governed  by  notice  to  principal 551 

Notice  to 31-33,672-695 

governed  by  the  rules  applicable  to  actual  notice    .     .     .  31-33 

is  notice  to  principal 480Z,  672 

general  application  of  the  rule 673 

when  actual  notice  required 673a 

effect  of,  depends  on  nature  of  agency 674 

executive  officer  of  a  bank 675 

sufficient  to  put  principal  on  inquiry  —  trustees     .     676,  note  2 

agent's  unlawful  acts,  principal  charged  with  notice  of    .  677 

bind  principal  to  those  misled  by  principal's  acts      .     .  678 

when  husband  of  the  principal 679 

confined  to  transactions  in  wliich  he  is  active      .     .     .  680 

to  one  of  several,  sufficient 681 

when  one  of  the  directors  of  a  bank 682 

corporation  not  affected  with  every  fact  known  to     683,  683a 
joint  piirchasers  do  not  sustain  relation  of  principal  and 

agent 684 

is  the  same  kind  of  notice  to  principal 685 

of  agent,  insufficient 686 

place,  manner  and  time  of  acquiring  knowledge     .     .     .  687 

whether  knowledge  present  to  the  mind  of  agent  at  the 

time,  the  controlling  circumstance 688 

when  not  necessary  to  be  acquired  during  agency    .     .  689 

agent's  duty  to  communicate  to  principal 690 

where  authority  depends  upon  ratification 691 

when  attorney,    and  cannot  be  disclosed  without  breach 

of  confidence 692 

executor  and  administrator 693 

to  trustee  before  creation  of  trust 694 

47 


738  INDEX. 

AGENT  —  Continued.  Section 

of  torts  of  other  agents  and  servants 695 

of  dissolution  of  partnership 502 

of  dishonor  of  commercial  paper 743-750,  754 

See  Biixs  and  Notes. 
Notice  of  dishonor  of,  to  whom  given. 

time  of  giving 817 

Notice  by 696-701 

has  the  same  force  as  when  given  by  principal  ....  6G6 

of  dishonor  of  commercial  paper 697 

when  resident  in  same  place  as  party  notified    ....  913 
See  Bills  and  Notes. 
Notice  of  dishonor  of,  by  whom  given. 

to  quit 698 

written  or  verbal 699 

effect  of  subsequent  ratification 700 

valid  only  from  time  of 701 

of  stoppage  in  transitu 480 

service  of  original  process  on 1303-1810 

See  Service. 
AGREEMENT, 

to  mortgage  is  recordable Ill 

what  implied  between  landlord  and  tenant 587 

ALIMONY, 

action  for,  lis  pendens 352 

divorce  and,  actions  for,  service  of  process  by  publication  .  1083 

will  not  authorize  personal  judgment 1142 

ALTERATION, 

of  notice,  after  service 1253 

of  signs,  amounts  to  notice  of  dissolution  of  partnership  .  503 

AMBIGUITIES, 

in  notice  of  dishonor,  not  fatal 840 

AMENDMENT, 

of  pleading,  not  allowed  after  publication  of  process     .     .  1050 

of  return,  when  allowed 1381 

AMERICAN, 

registry  acts,  objects  of 96 

rule  as  to  notice  limiting  carrier's  liability 541,  553 

AMOUNT, 

of  guaranty  uncertain 396,  400,  419 

definiteness  of 398 

of  tax  due,  should  be  stated  in  advertisement 1009 

ANIMALS, 

dangerous,  owners  of  affected  by  notice 480t 


IXDEX.  io\) 

APPEAL,  Section 

Notice  of 1208-1230 

not  always  required 1208 

written  and  served  upon  attorney 1209 

in  criminal  cases 1210 

from  suits  before  justices  of  the  peace 1211 

when  notice  serves  as  an  assignment  of  errors  ....  1213 

grounds  of  appeal  to  be  stated  in 1213 

assent  to  judgment  required  in 1214 

served  on  same  day  as  filed  —  California 1215 

must  be  given  in  time 1216 

personal  service  of,  not  required 1217 

to  be  given  to  co-parties 1218 

does  not  depend  upon  conflict  of  interest 1219 

waived  by  appearance 1220 

motion  to  dismiss,  special  notice  of,  not  required  ....  1191 

APPEARANCE, 

waives  original  process 1161  (note  2),  1358 

notice  to  take  depositions,  when 1253 

notice  of  motion 1203 

notice  of  appeal 1220 

special  does  not  amount  to  waiver 1358 

ARRIVAL, 

of  goods,  and  demand  by  consignee,  ends  transit  ....  461 

notice  of,  given  by  carriers 562-577 

will  terminate  liability  as  carriers 563 

reasonable  time  for  removal  after 564 

classification  of  conflicting  authorities 565 

in  Massachusetts,  Illinois,  Iowa,  held  unnecessary  .     .     .  566 

modification  of  the  rule  in  Massachusetts 567 

New  Jersey  and  Vermont,  reasonable  time  to  remove      .  568 

additional  authorities,  to  same  point 569 

New  York,  Michigan,  Texas  and  New  Hampshire,  required  570 

required  of  carriers  by  water 571- 

comparison  of  conflicting  views 573 

rule  requiring  notice 573 

difference  in  local  customs 574 

rule  affected  by  custom 575 

waiver  and  excuse  of 576 

what  is  reasonable  time  for  removal 577 

ARTS, 

facts  connected  with  the,  judicially  noticed 1417 

ASSENT, 

to  judgment  required  in  notice  of  appeal 1214 

to  be  binding,  must  be  voluntary,  and  with  notice  of  nile 
limiting  liability  of  can-iers 555-557 


740  INDEX. 

ASSESSIMENT,  Section 

special,  advertisement  of  notice  of  sale  for 1124 

of  damages  to  property,  requires  notice  to  owner      .     ,     .  1139 

ASSIGNEE, 

of  mortgage  regarded  as  purchaser 263 

in  bankruptcy,  notice  to,  of  dishonor  of  bill  or  note  .     .     769, 770 

notice  of  dishonor  by 725 

of  chose  in  a<;tion  takes,  subject  to  equities  ; 431 

ASSIGNMENT, 

deed  of,  when  recordable 115 

of  lease 116 

of  mortgage 117 

for  benefit  of  creditors,  not  recordable 120 

of  ehoses  in  action,  notice  of 428-450 

definition  of  ehoses  in  action 428 

not  assignable  at  common  law 429 

assignment  transfers  claim 430 

assignee  takes,  subject  to  equities 431 

effect  of,  to  debtor 432 

assignment  incomplete  without 438 

the  EngUsh  rule 433,  436 

held  necessary  as  against  creditors 434 

objects  of 435 

assignee  has  no  greater  right  than  his  assignor  had     .     .  436 

by  whom  given 437 

presumed  from  circumstances 438 

after  notice  of  fraudulent  issue  to  assignor  will  not  affect 

rights  of  parties 439 

double  purpose  of 440 

oral  or  written 437 

of  over-due  negotiable  bills  and  notes,  requires  notice    .     .  441 

negotiable  paper,  unindorsed  require 442 

balance  due  on  account 443 

policies  of  insurance 444 

notice  to  insurer 445 

conditions  of  policy 446 

of  subject  of  insurance 447 

by  retiring  partners 448 

notice  of,  may  be  implied 449 

after  loss        450 

for  benefit  of  creditors,  of  maker  of  note,  will  not  excuse 

notice  of  dishonor 949 

of  errors,  notice  of  appeal  serves  aa 1212 

ASSUMPSIT, 

when  m  action  of,  notice  to  produce  books  and  papers  un- 
necessary   1364 


INDEX.  741 

ATTACHMENT,  Section 

grounds  of,  stated  in  affidavit  for  order  of  publication     1226-1237 

See  Process,  Original. 
of  funds  in  hands  of  drawee,  no  excuse  for  failure  of  notice 
of  dishonor 1027 

ATTORNEY, 

service  of  notice  of  trial  on 1172 

return  of  service  upon,  what  sufficient 1248 

service  of  notice  on,  in  matters  of  practice  ....       1321-1323 

in  suits  before  justice  of  the  peace 1322 

should  not  be  where  his  connection  with  case  has  ceased    1323 
AUCTIONEER, 

acceptance  of  proposal  by,  notice  of 8&1 

AVERJIENTS, 

in  pleading,  necessary  to  obtain  order  of  publication  1049-50,  1057 
of  notice  ia  pleading,  when,  and  when  not,  necessary    138&-1406 
See  Pleading. 
AVOIDANCE, 

of  knowledge,  notice  may  be  inferred  from 89 

BAILEES, 

notice  to,  of  delivery  of  thing  bailed 452-456 

See  Carreers  and  Other  Bailees. 

of  vendor's  right  of  stoppage  in  transitu 457-480 

See  Stoppage  in  Transitu. 
BAILIFF, 

or  servant  of  landlord,  not  entitled  to  notice  to  quit  .     .     .      595 

BANKING  CORPORATION, 

notified  through  its  executive  officer 675 

notice  to  directors  of,  will  bind  when, 682,  683 

BANKRUPTCY, 

of  holder,  by  whom  notice  of  dishonor  may  be  given  .  725,  726 
of  drawer  or  indorser,  to  whom  notice  may  be  given  .  769-772 
of  acceptor,  no  excuse  for  failure  to  give  notice  of  dishonor  771 
dissolution  of  partnership  by 497 

BILL  OF  LADING, 

effect  of  assignment  of,  upon  consignors'  rights     ....       472 
when  notice  limiting  carriers'  liability  printed  on,  insuffi- 
cient     548 

BILLS  AND  NOTES, 

negotiable,  purchasers  of,  how  affected  with  notice  .     .     .  80-94 
See  Purchasers. 

Notice  of  dishonor  of 702-1028 

By  whom  may  be  given     . 702-728 

generally  by  holder 703 


742 


INDEX. 


BILLS  AND  NOTES  — Cojt^mtted.  .  Section 

by  any  party  to  the  instrument 703 

criticism  of  authorities  by  Judge  Story 704 

party  discliarged  becomes  stranger  to  bill       ....  705 

party  not  notified,  not  immediately  discharged    .     .     .  706 
time  must  have  elapsed  within  which  should  have 

been  notified 706 

by  any  party,  entitled  to  reimbursement  on  paying    707,  709 

given  by  party  before  received 708 

cannot  be  waived  by  party  once  discharged,  so  as  to 

render  his  notice  valid 708 

by  acceptor 710 

by  acceptor,  supra  protest 711 

by  drawer  of  bill 713 

by  maker  of  note 713 

by  an  agent     .     .     : 714 

for  collection,  or  by  notary 715 

when  by  holder,  need  not  be  owner 716 

by  successive  agents  to  each  other 717 

will  not  be  affected  by  signing  wrong  name     .     .     .  718 

must  have  authority  from  party  whose  name  is  used  719 

authority  inipUed 720 

by  one  holding  as  security 721 

ratification  by  holder  of  act  of  stranger 732 

by  one  without  knowledge  when  given 733 

by  executor  or  administrator 724 

by  assignee  in  bankruptcy 735 

when  by  bankrupt 736 

by  guardian  or  ward 737 

by  married  woman 728 

To  ivhom  given 739-775 

to  drawers  and  indorsers  —  reason  for  rule 739 

drawer  of  bill 730 

should  not  be  waived  by  agent 731 

when  not  entitled  to  notice 732 

drawn  upon  partnership  by  member  of  firm       .     .  733 

to  indorser 734 

need  not  be  indorser  for  value 735 

to  any  antecedent  party 736 

may  be  of  partial  dishonor 737 

to  indorsers  of  over-due  paper 738 

the  same  reasons  apply  as  in  case  of  dishonor  of  paper 

indorsed  before  maturity 739 

indorser  who  re-issues  dishonored  paper  not  entitled  to     .  740 

purchase  at  indorser's  request,  notice  unnecessary      .     .  741 

transferrer  by  deUvery  not  entitled  to 742 


INDEX.  743 

BILLS  AND  NOTES  —  Continued.  Section 

to  agent 743 

authority  of,  to  receive,  what  sufficient 744 

may  be  imphed 745 

question  of  fact 746 

when  inferred  from  nature  of  general  authority  .     .  747 
appointed  prior  to  war,  may  be  notified  after  hostilities 

commenced 748 

authority  to  receive,  what  lield  insufficient     ....  749 

not  implied  from  autliority  to  indorse 750 

to  partners 751 

indorsement  during  partnership 752 

after  dissolution 753 

to  agent  of  one  of  the  partners 754 

to  surviving  partner 755 

exception  to  the  rule  of,  binding  both  by  serving  one  756 

to  joint  indorsers,  not  pai'tners,  not  by  service  on  one    .  757 

agency  not  implied  from  joint  indoi-sement      .     .     .  758 

consequences  of  failure  to  notify  both 759 

assumption  of  authority  by  one,  binds  himself      .     .  760 

admission  of  proper  notice  by  one  of  two    ....  761 

joint  administrators  cannot  tie  then*  hands     ....  762 

to  personal  representatives 763 

how  addressed  to  and  served 764-768 

in  case  of  bankruptcy,  part}'  liable 769 

before  selection  of  assignee 770 

no  excuse  for  failure  of  notice 771 

after  assignment,  might  be  to  bankrapt 772 

to  infant  party 773 

to  maiTied  woman 774 

to  insane  drawer  or  indorser 775 

time  of  giving 776-827 

importance  of  question  of 776 

rules  of,  settled  by  repeated  decisions 777 

division  of  subject 778 

must  be  subsequent  to  dishonor 779 

effect  of  payment  on  day  of  dishonor 780 

may  be  on  last  day  of  grace 781 

note  dishonored  on  last  day  of  grace  when  payment 

refused 782 

by  failure  to  pay  on  presentment 783 

by  failure  and  qualified  refusal 784 

to  resident  of  same  place  as  holder 785 

time  of  delivery  and  not  of  sending 786 

at  place  of  business  or  residence 7817 

hours  at  place  of  business 78b 


74:4  INDEX. 

BILLS  AND  'NOTES  —  Continued.  Section 

hours  at  place  of  residence 789 

nine  o'clock,  p,  M 790 

when  left  on  day  of  dishonor 791 

to  parties  resident  in  different  place  from  holder     .     .     .  792 

by  mail,  time  of  depositmg  letter 793 

general  construction  of  "  reasonable  time  "    ....  794 

each  party  has  his  "  day  " 795 

not  required  to  neglect  other  business  to  give  .     .     .  796 

the  "day  "  of  one  party  not  for  the  benefit  of  another  797 

consequence  of  numerous  parties  taking  one  day       ,  798 

time  not  always  measured  by  number  of  indorsers  .  799 

difficulties  in  applying  the  rule 800 

Chitty's  doctrine  as  to  "  next  day,"  by  first  mail  .     .  801 

twenty-four-hour  rule  of  Judge  Story 802 

impracticabiUty  of  Chitty's  rule 803 

inconvenience  of  twenty-four-hour  nile       ....  804 

judicial  interpretation  of  "  next  day  " 805 

what  is  unreasonably  early  horn*  depends  upon  local 

custom 806 

the  hour  of  closing  the  mail 807 

five  o'clock  held  too  early 808 

seven  o'clock  held  too  early 809 

six  o'clock  the  hour  of  closing 810 

ten  minutes  past  nine  o'clock 811 

might  be  earlier  than  nine 812 

half -past  nine  held  too  early 813 

construction  of  rule  by  Chief  Justice  Marshall    .  814 

not  necessarily  by  first  mail  of  next  day      ....  815 
where  no  mail  on  next  day  deposited  in  time  for  nenct 

mail 816 

agents  or  attorneys  have  their  day 817 

must  be  secvilar  day 818 

Jewish  festival 819 

Sunday 820 

time  referred  to  hour  of  maiUng 821 

governed  by  law  of  place  of  contract 822 

consequences  of  adopting  unusual  modes 823 

general  rule  one  of  enlargement  rather  than  of  restriction  824 

waiver  and  excuse 825 

deductions  from  authorities  cited 826 

no  exceptions  to  rule  requiring  notice  in  reasonable  time  827 

'  Manner  and  mode  of  giving 828-929 

division  of  subject 828 

where  and  how  siifficiently  served,  if  duly  received    .     .  829 

by  post  to  residents  of  same  place 830 


INDEX.  745 

BILLS  AND  NOTES-  Continued.  Section 

whether  written  or  oral 831 

verbal  notice  delivered  to  wife 832 

should  be  wTitten  to  distant  parties 833 

form  and  contents 834 

no  form  prescribed 835 

immaterial  omissions 836 

date  of  maturity 837 

name  of  payee 838 

clerical  errors 839 

mere  ambiguities 840 

must  show  presentment  on  business  day 841 

signed  by  one  having  authority 842 

where,  and  ho^v  served 843 

parties  residing  in  same  place 844 

in  dorser  temporarily  absent  from  home 845 

wnat  constitutes  a  place  of  business 846 

personally  upon  resident  of  same  place,  when  place  of 

residence  knouii 847 

by  post  on  resident  of  same  placo,  delivery  must  be 

proved 848 

different  meanings  of  the  word  "town"      ....  849 
by  post,   between  residents  of  different  villages  in 

same  town 850 

leaving  at  residence  or  place  of  business      ....  851 

residence  in  one  place,  business  in  another  ....  852 
"place  of  business"  and  "residence,"  and  what 

amounts  to  leaving  at  either 853 

residence 854 

need  not  be  domicile 855 

leaving  notice  at 856 

boarding-house 857 

at  counting  house,  with  pretended  agent       .     .     .  858 

will  not  sufiELce  to  leave  near  the  place 859,  860 

corresponding  numbers  not  sufficient  to  identify  place  861 

several  places  of  business,  either  will  suffice       ....  862 

holder  may  elect  between  place  of  business  and  residence  863 

may  be  left,  when  no  one  there  to  receive  it      ....  864 

must  be  the  proprietor  of  place  of  business 865 

office  of  du-ectors  of  corporation 866, 867 

difference  in  time,  at  residence  or  place  of  business     .     .  868 

by  mail  between  residents  of  the  same  place     ....  869 

letter  carriers 870 

drop-letters  required  to  be  stamped 871 

penny  post 873 

in  Baltimore,  and  other  large  cities 878 


746  INDEX. 

BILLS  AND  l!iOTES  — Continued.  Sectiok 

established  custom  of  bank 874 

when  authorized  by  indorser 875 

by  mail  to  parties  residing  near  place  of  dishonor  ,     .     876,  877 
partners  —  one  residing  in,  and  one  near,  place  of  dis- 
honor         878 

cases  requiring  personal  notice  to  indorser  residing  in 

neighborliood 879 

residing  thi-ee  miles  distant 880 

personal,  where  party  resides  at  great  distance  from 

any  postoffice 881 

parties  residing  near  different  post  towns     .     .     .  882 

office  to  which  indorser  visually  resorts ....  883 

general  adoption  of  service  by  mail 884 

exceptional  case 885 

necessity  of  a  rule 886 

by  male  to  different  places  in  same  town 887 

general  direction  to  town  postoffice,  prima  facie  sufficient  888 

private  messenger 889 

addressed  to  residence  or  place  of  business  when  known  .  890 

must  be  addressed  to  place  of  residence 89 1 

may  be  notified  at  pretended  place  of  residence  .     .     .  893 

exception  to  cases  where  mail  most  convenient  mode.     .  893 

when  holder  may  choose  between  places 894-896 

cases  governed  by  question  of  distance 897 

criticism  of,  and  true  rule  laid  down 898 

by  mail 899-929 

to  principal  office  of  parish 899 

to  county  seat 900 

to  principal  office  of  town 901 

inquu-y  should  be  made  for  residence 902,  903 

sufficiency  of,  question  for  jury 904 

to  transient  indorser,  may  be  at  temporary  residence    .  905 

but  not  when  he  has  a  permanent  place  of  abode     .     .  906 

member  of  congi'ess,  when,  and  how  should  be  served  .  907 

when  sufficient,  if  sent  to  last  known  residence  .     .     .  908 

diligent  inquuy  for  unknown  residence 909 

inclosing  notices  to  all,  in  letter  to  last  indorser  .     .     .  910 

transitory  place  of  business 911 

through  non-resident  agent,  between  residents  of  same 

place 912 

from  resident  agent,  of  non-resident  holder     .     .     .     .  913 
through  successive  indorsers  between  parties  residing  in 

same  place 914 

sending,  without  inquuy,  to  place  of  payment,  insuffi- 
cient     915 


INDEX.  Y47 

BILLS  AND  ^OTES— Continued.  Sectiox 

information  sufficient  to  put  upon  inquiry  ....  916 

inquiry,  suffi^cient  and  insufficient 917-921 

to  certain  place  on  the  strength  of  previously  acquired 

knowledge 922,  923 

address  by  surname  alone,  insufficient 924 

delay  chargeable  to  indorser  .     .  • 925 

holder  misled  by  place  of  date 926 

address,   should    include  name  of  state 927 

to  place  designated  by  mdorser 928 

delay  from  sending  by  usual  route 929 

Waiver  and  excuse  of 930-1028 

general  character  of  waiver 930 

division  of  subject 931 

waiver  may  be  antecedent  or  subsequent 933 

antecedent  waiver  in  writing 933 

effect  of  "  protest  waived  " 934 

"  I  vraive  demand  of  protest " 935 

maybe  embodied  in  the  insti'ument  —  will  not  excuse 

presentment 936 

no  special  form  required 937 

by  letter 938 

may  be  verbal 939 

established  by  circumstances 940 

by  promise  to  the  maker  to  pay 941 

when  promise  supported  by  consideration    ....  942 

indemnity  taken  does  not  always  waive       .     .     .     .  943 
reservation  of  title  to  real  estate,   for  which  note 

given 944 

when  dejiends  upon  sufficiency  of  indemnity  .     .     . .  945 

indemnity  taken  by  mdorser  is  for  liis  own  security    .     94G,  947 

indorser  with  funds  of  maker  does  not  become  principal  .  948 

assignment  to  trustee  will  not  excuse 949 

taking  mortgage  of 'all  makers'  property  held  no  waiver  950 
indemnity ^taken  furnishes  stronger  reason  for  notice  .     951,  952 

indorsement  of  renewal  note,  not  accepted,  no  waiver     .  953 

request  no  waiver  when  not  acceded  to 954 

by  fii'st  indorser  does  not  bind  subsequent       ....  955 

subsequent  promise,  effect  of,  conflicting  views  as  to    .  956 

conditions  of 957 

when  made  without  knowledge,  no  waiver      .     .     .  958 

express  and  imphed 959 

implied 960 

promise  to  see  it  paid  held  sufficient      ....  961 

recitals  in  contract  of  party  acknowledging  bill  .  962 

must  be  unequivocal 963 


748  INDEX. 

BILLS  AND  NOTES  —  Con  h'nrtecZ.  Section 

admissions  to  stnrangers  do  not  amount  to      .     .     .  964 

anxiety  to  have  bill  paid,  no  waiver 965 

held  evidence  of  priox*  notice 966 

held  no  evidence  of  notice,  but  might  waive   .     .     .  967 

even  written  admission  not  conclusive 968 

either  waiver  or  admission        969 

onus  probandi 970,  973 

prima  facie  evidence  of  diligence 971 

of  knowledge  of  laches 972 

principles  governing  the  question 974 

knowledge  of  facts,  and  not  their  legal  effect,  neces- 
sary to  bind  subsequent  promisor 975 

excuses  of  a  general  nature  enumerated 976 

inevitable  accident 978 

prevalence  of  malignant  fever 979 

existence  of  war 980 

interdiction  of  commerce 981 

actual  hostilities 982 

late  war 983 

interruption  of  postal  comnmnication 984 

existence  of  war,  where  note  payable 985 

if  intercourse  legal,  no  excuse 986 

loss  of  note  by,  no  excuse 987 

when  obstruction  removed,  party  entitled  to    .     .    988,  993 

party  not  required  to  violate  law  of  his  domicile     .     .  989 

failure  to  find  after  dUigent  inquiry 990 

facts  excusing  presentment  will  not  always  excuse  fail- 
ure of  notice 991 

death  of  holder 993 

sudden  sickness,  and  death  of  agent 994,  995 

excuses  of  a  special  character,  enumerated 977 

special  excuses  —  treated  as  waiver 996 

bUl  drawn  for  benefit  of  drawer 997 

accommodation  note  or  bUl 998,  999 

mere  understanding  between  drawer  and  drawee,  that 

former  shall  pay,  will  not  excuse 1000 

no  funds  in  hands  of  di'awee,  when  wiU  excuse  .      1001, 1009 

appHcation  of  the  rule  confined 1002 

drawer  has  no  right  to  anticipate  payment     ....  1004 

bUl  drawn  against  goods  in  transit 1005 

amount  in  hands  of  drawee  grossly  inadequate  .     .     .  1006 
where  drawer  has  been  informed  that  draft  would  not 

be  paid 1007 

where  drawer  indebted,  but  amount  not  yet  due      .     .  1008 

expectation  of  payment  must  continue  to  maturity      .  1009 


INDEX.  74:9 

BILLS  AND  ^OTES  — Continued.  Section 

payment  need  not  be  anticipated  from  drawee    .     .     .  lOlO 

may  be  anticipated  from  drawee's  promise     ....  1011 

when  drawee  has  already  honored  drafts     ....  1012 

running  account  between  parties 1013 

suspecting  absence  of  funds,  no  excuse 1014 

drawer  being  in  debt  to  cb*awee,  no  excuse     .     .     .     .  1015 

no  expectation  of  funds  at  the  place,  no  excuse  .     .     .  1016 
want  of  funds  will  not  excuse  failure  to  notify  in- 

dorser 1017 

though  he  be  accommodation  indorser 1018 

otherwise  where  indorsement  is  made  with  notice  of 

facts  sufficient  to  excuse 1019 

former  partnership  between  drawer  and  drawee,  no 

excuse 1020 

partner  drawing  upon  his  firm  not  entitled  to  notice     .  1021 
that  goods  purchased  are  for  use  of  firm,  will  not  ex- 
cuse notice  of  dishonor  of  note,  given  for  ....  1022 
fraud  practiced  by  indorser,  will  excuse  failure  of  notice  1023 

motives  for  indorsement  immaterial 1024 

adding  the  word  "  surety,"  will  not  excuse     ....  1025 

presence  of  indorser  at  refusal,  will  not  excuse  .     .     .  1026 

attachment  of  funds  in  hands  of  drawee,  no  excuse     .  1027 

notice  not  required  of  dishonor  of  void  note  ....  1028 

BOARDING-HOUSE, 

when  place  of  residence  of  party  to  biU,  notice  may  be  left  at  857 

BONDS, 

negotiable,  notice  of  defenses  to,  through  trustees,  .    676,  note  2 

notice  to  produce,  in  actions  on,  unnecessary 1265 

motion  for  judgment  on,  notice  of 1197 

BOOKS, 

and  records  constituting  link  in  chain  of  title,  notice  from .  326 

BOOKS  AND  PAPERS, 

notice  to  produce,  to  be  offered  in  evidence      .     .     .       1257-1292 

general  remarks 1257 

necessary  to  the  admission  of  secondary  evidence  .     .     .  1258 

demand  before  suit  brought,  not  sufficient 1259 

necessary  when  papei-s  recorded 1260 

rule  same  in  criminal  prosecution 1261 

exceptions 1262 

in  action  of  trover,  unnecessary 1263 

in  assumpsit,  unnecessary 1264 

debt  on  bond,  unnecessary 1265 

action  of  covenant,  unnecessary      .......  1266 


750  INDEX. 

BOOKS  AND  TAPERS  — Continued.  Section 

against  constable  for  making  return,  unnecessary     .     .  1367 

papers  filed  or  mentioned  in  pleadings 1268 

pajiers  in  court 1269 

paper  must  be  traced  to  opposite  party 1270 

proof  of  possession  from  circumstances 1271 

papers  under  control  of  adversary 1272 

privity  of  party  notified,  with  party  in  possession, 

must  be  proven 1273 

property  passed  out  of  party's  possession     ....  1274 

party  failing  to  produce  may  impeach  copy 1275 

not  by  introduction  of  original 1276 

secondary  evidence,  where  possession  of  paper  disclaimed  1277 
production  is  not  an  admission  of  genuineness  of  signa- 
ture         1278 

original  need  not  be  offered  after  production     ....  1279 

inference  drawn  from  failure  to  produce 1280 

notice  to  produce  notice,  unnecessary 1281 

contents  of  notice 1282 

should  not  be  too  general 1283 

general,  required  to  be  in  writing 1284 

renewal  unnecessary  in  case  of  continuance       ....  1285 

time  of  notice  to  produce 1286 

served  at  trial  —  too  late 1287 

party  notified  not  required  to  incur  expense  ....  1287 

original  not  in  existence,  time  of  service  immaterial     .  1289 

may  be  served  upon  opposite  attorney,  when     ....  1290 

may  be  served  upon  either  of  several  joint  parties       .     .  1291 

personal  service  not  indispensable 1292 

BRIDGES, 

notice  to  repair 4800^ 

See  Highways. 
BUSINESS, 

place  of  leaving  notice  of  dishonor,  ^ 

See  Bills  and  Notes. 
CARRIERS, 

Notice  by,  limiting  their  liability 531-577 

division  of  subject.     1.  Restricting  their  liability  as  in- 
surers.    2.  Terminating  their  liability  as  carriers      .     .  531 
when  their  liabiUty  to  consignor  has  its  inception  .     .     .  532 
upon  delivery  of  goods  for  transportation  —  i-ule  not  af- 
fected by  public  notice 533 

nature  of  common  law  hability 534 

different  methods  of  giving 535 

state  of  the  law  in  England 536 


INDEX.  751 

CAKRIERS— Continued.  Section 

where  notice  held  sufficient,  must  be  brouglit  home  to 

consignor 537 

posting  insufficient,  unless  notice  read 538-540 

American  rule  —  must  be  clear  and  explicit 541 

value  requu-ed  to  be  stated,  to  fix  cost  of  can-iage       .     .       542 

printed  on  railroad  ticket 543 

must  be  seen  and  understood 544-546,  548 

to  whom  given  —  agent  or  servant 547 

must  be  seen  and  assented  to  when  printed  on  bill  of 

lading 548 

when  several  conflicting,  bound  by  least  favorable  to  one 

giving 549, 550 

to  owner,  will  affect  transactions  by  agent  to  whom  not 

communicated 551 

general  doctiine  in  America,  cannot  be  limited  by      .     .       553 

may  be  by  contract 553 

notice  and  assent  amounts  to 554 

assent  must  be  voluntary 555-557 

will  not  exempt  from  liability  for  negligence     .     .     .     558-561 

even  where  assent  raises  a  contract 558 

notice  of  an-ival 562-577 

actual  —  opportunity  to  remove  goods 577a 

See  Arrival. 
of  letters,  when  notice  of  dishonor  delivered  by       .     .      870 

CAREIERS  AND  OTHER  BAILEES, 

Notice  to 451-480 

division  of  subject 451 

of  delivery  of  goods  for  carriage 452 

in  what  cases  required  when  goods  deposited  at  public 

wharf 453 

will  only  bind  carrier  when  he  consents  to  receive  them      454 
when  so  delivered  pursuant  to  previous  understand- 
ing        455 

not  necessary  when  delivered  on  carrier's  private  wharf      456 
stopping  in  transitu 457-480 

See  Stoppage  in  Transitu. 

of  facts  requiring  extraordinary  care 480a 

of  loss  by  shippers 480& 

CERTAINTY, 

as  to  facts  communicated,  sufficient  if  may  be  rendered  cer- 
tain by  inquiry 30 

of  description  in  mortgage,  what  sufficient      ....     180-185 
in  recitals  of  title  papers,  reasonable  degree  of,  required  to 
affect  purchasers 816-321 


752  INDEX. 

CERTIFICATE,  SECTION 

of  emancipation  not  recordable 121 

of  official  character  of  officer  taking  acknowledgment,  re- 
quired        136 

CHAIN  OF  TITLE, 

instrument  must  be  in  some,  for  record  to  operate  as  no- 
tice       205,206 

effect  of  missing  link 207 

record  imparts  no  notice  of  relations  between  parties       .       208 

example  of  broken 210-212 

sheriff's  deed  of  interest  of  apparent  stranger,  is  not  no- 
tice   213 

record  of  conveyance,  anterior  to  grantor's  acquisition  of 
title 214-216 

CHANCERY  PROCEEDINGS, 

in  United  States  courts,  how  notice  of  served 1356 

when  of  summary  nature,  party  entitled  to  notice  of     .     .     1140 

CHATTEL  MORTGAGE, 

notice  of,  by  registration,  and  of  unregistered-      ....        77 

deposit  of,  in  wrong  town,  will  not  affect  purchasers  with 
notice 194 

effect  of  registry,  as  notice,  follows  property  to  another 
state 244 

luurecorded,  held  good  against  attaching  creditors  with  no- 
tice           ...      271 

CHATTELS, 

purchasers  of,  with  and  without  notice  of  title  adverse  to 

grantor 67 

innocent  pledgee 68 

mere  possession  not  conclusive  evidence  of  title      ...  69 
innocent  purchaser  from  broker  unaffected  by  secret  in- 
structions from  principal 70 

secret  lien  for  purchase  money  ineffectual 71 

conditional  sales 72-76 

See  Conditional  Sales. 

not  affected  by,  including  in  recorded  deed  to  real  estate  336 
possession  of,  notice  to  purchasers  of  rights  of  possessor      78,  306 

notice  to  custodian  of  their  transfer 441 

CHOSES  IN  ACTION. 

purchaser  charged  with  notice  of  equities  against     ...        79 

notice  of  assignment  of 428-450 

See  Assignment. 


INDEX.  T53 

CLERICAL  ERRORS.  Section 

will  not  always  vitiate  notice  of  dishonor  of  commercial 

paper 839 

when  not  misleading,  will  not  vitiate  notice  of  taking  depo- 
sitions        1225 

CLERK, 

of  municipality,  service  on;  insufficient 1313 

COmiERCE, 

interdiction  of,  excuses  notice  of  dishonor  of  negotiable  in- 
struments       981 

COMMERCIAL  PAPER, 

notice  of  dishonor  of. 

See  Bills  and  Notes. 
COMMON  CARRIERS, 

See  Carriers. 
COMPUTATION  OF  TIME, 

of  publication  of  notice 1070 

of  notice  to  take  depositions 1235 

of  service 1330, 1331 

CONCEALMENT, 

of  agency  will  not  exonerate  principal 671 

CONDITIONAL  SALES, 

purchasers  from  conditional  vendee  charged  with  notice     .  73 

property  held  in  pledge,  subject  to  rights  of  pledgor      .     .  73 

condition  binding  when  by  parol 74 

property  may  be  unclaimed  in  an  altered  state      ....  75 

caveat  emptor 76 

CONDITIONS, 

of  a  mortgage  insufficiently  expressed,  registry  void      .     .  179 

of  waiver  of  notice  of  dishonor  of  commercial  paper     ,     .  957 

of  insurance  policy,  assigned  subject  to 446 

CONSENT, 

to  postponement  of  taking  depositions    .     .     .     .   ' .     .  •    .  1250 

to  shortening  the  time  of  taking  depositions 1251 

CONGRESS, 

notice  of  dishonor  of  bills,  how  served  on  member  of     .     .      907 
CONSIDERATION, 

payment  of,  necessary  to  protection  of  purchaser  of  nego- 
tiable instrument  before  maturity 93 

notice  of  want  or  failure  of 94a 

want  of,  does  not  affect  registration  of  deed  ....  122,  123 
payment  of,  no  protection  to  purchaser  pendente  lite  .  .  347 
necessary  to  support  assigmnent  of  bill  of  lading  as  against 

creditors 473 

48 


T54:  INDEX. 

CONSIGNEE,  Section 

notice  of  rights  of,  adverse  to  consignors 458-480 

See  Stoppage  in  Transitu. 
possession  by,  ends  transit 466 

CONSTRUCTIVE  NOTICE, 

definitions  of .^ 37-39 

held  same  as  implied  notice 38 

when  prescribed  by  statute 39 

distinctions  between,  and  actual,  express  or  implied      .     .  40 

different  kinds  of 41 

is  an  inference  of  law 43 

of  contents  of  writing,  to  person  executing 43 

possession  held  as 44 

to  purchasers  pendente  lite 45  339 

See  Lis  Pendens. 

of  recitals  in  title  papers 46,  309 

from  possession  of  deeds 47 

CONSTRUCTIVE  POSSESSION, 

as  notice  of  claim  of  title 286,  288 

CONTINUANCE, 

of  case  does  not  require  renewal  of  notice  to  produce      .     .     1285 

CONTRACT, 

to  convey,  prior  and  subsequent,  effect  of  notice  ....        55 
executory,  when  not  entitled  to  registration     ....    122,  123 

notice  of,  by  recital  in  title  papers 329 

actions  for  specific  performance  of  —  Us  pendens  ....    342a 

completed  by  notice  of  acceptance  of  proposal 378 

can-iers  may  Umit  their  common  law  Mabilities  by     .     .     353-357 
See  Carriers. 

in  agent's  name  may  bind  principal 670 

'  acknowledging  bUl  of  exchange  held  waiver  of  notice  .  .  952 
for  pubUc  improvements,  notice  by  publication  ....  1123 
certain  liabilities  arising  in,  fixed  by  notice      ....  480Z-480o 

of  indemnity 480Z 

measure  of  damages  affected  by  notice 480m 

notice  of  usage  or  custom •  .     .     480n,  480o 

CONVEYANCES, 

unregistered,  purchasers  with  notice  of 64 

See  Unregistered  Instruiments. 
between  strangers  to  title,  registry  does  not  affect  purchasers      223 

by  statute  —  execution  sale 327 

registration  of 95-272 

See  Registration  of  Instruments. 


INDEX.  755 

CONVICTS,                                                                            Section 
service  of  notice  upon 1317 

CORPORATIONS, 

formed  by  partners,  members  individually  liable  ....      488 

notice  by,  to  quit 622 

notice  to,  to  quit 628 

not  affected  with  notice  of  every  fact  known  to  directors  683,  683a 

notice  to,  through  executive  officers 683?> 

office  of,  the  place  of  business  of  directors 866,  867 

foreign,  how  served  with  process 1303-1308 

domestic,  how  served  with  process     ,     .     .     .     .     .       1309-1311 

See  Jurisdiction. 
municipal,  service  of  notice  on 1312,  1313 

COURT, 

when  sufficiently  designated  in  notice 1210 

judicial  notice  of  terms  of 1414 

COVENANT, 

action  of,  when  notice  to  produce  books  and  papers  unneces- 
sary      1266 

CREDITOR, 

purchasing  at  execution  sale,  charged  with  notice  by  prior 
registry 228-235 

charged  with  notice  of  unregistered  deed  by  prior  informa- 
tion       264 

affected  witli  notice  of  unregistered  chattel  mortgage     .     .      271 

affected  with  notice  by  possession 305 

CREDITORS'  BILL, 

to  operate  as  lis  pendens  must  be  definite  in  description    303,  342a 

CUSTOMS, 

notice  of,  that  affects  party  to  contract 480o 

of  community  that  control  consignee's  right  to  notice  of 

arrival  of  goods 576 

of  which  judicial  notice  is  taken 1404 

of  which  judicial  notice  is  not  taken 1405, 1408 

DAMAGES, 

measure  of,  for  breach  of  contract  affected  by  notice     .     .  480m 

DANGEROUS  ANIMALS, 

liability  of  owner  of  fixed  by  notice 480i 

DAY, 

party  entitled  to  one,  for  giving  notice  of  dishonor  of  bills 

and  notes 794-805 

general  construction  of  "  reasonable  time  " 794 


756  mDEX. 

DAY — Contintied.  Section 

each  party  has  his  day 795 

statement  of  rule  by  Ellenborough 796 

the  "  day  "  of  one  party  not  for  the  benefit  of  another  797 

consequences  of  numerous  parties  taking  one  day    .     .  798 

time  not  always  measured  by  number  of  parties      .     .  799 

difficulties  in  applying  the  rule  of  one  day  to  give  notice  800 

Chitty's  doctrine  as  to  "  next  day  " 801 

criticism  of  Chitty,  by  Story  —  twenty-four  hours     .  802 

impracticability  of  Chitty's  nile 803 

inconvenience  of  twenty-four  hour  rule      ....  804 

judicial  construction  of  "next  day" 805 

agents  or  attorneys  have  one,  for  giving  notice  of  dis- 
honor     .     .     .     .  • 817 

must  be  secular  day 818 

Jewish  festival 819 

Sunday        820 

DEATH, 

of  partner,  dissolves  partnership,  notice  unnecessaxy     .     .      496 

DEBT, 

action  of  —  when  notice  to  produce  books  and  papers  unnec- 
essary        1266 

DECEEE  IN  CHANCERY, 

summary  proceedings  to  obtain,  require  notice     ....    1140 

DEED, 

possession  of,  as  notice  of  rights  of  possessor 46,  56 

registry  of,  as  notice  to  purchasers, 

See  Registeation  of  Insteuments. 

of  assignment,  should  be  recorded 115 

with  defeasance,  is  mortgage  and  should  be  so  recorded  187-189 
sheriff's,  recorded  as  mortgage,  will  not  operate  as  notice  .  190 
unregistered,notice  of, 

See  U^^lEGISTERED  Instruments. 
notice  from  recitals  in. 

See  Title  Papers. 

DEFEASANCE, 

deed  with,  should  be  recorded  as  mortgage,  to  operate  as 

notice  to  purchasers 187-189 

by  parol,  deed  recorded  as  mortgage 189 

DEFENDANT, 

should  be  named  in  original  process 1152 

when  omission  of  name  held  immaterial 1153 

when  infant  —  how  served  with  process 1158 


INDEX-  757 

DEFINITION,  Section 

of  actual  notice 3 

of  constructive  notice 37 

DELIVERY, 

of  instrument  necessary  to  give  effect  to  registry  as  notice  141-143 

after  recording 143 

effect  of 143 

of  goods  for  transportation,  notice  to  carriers  of  .     .     .     452-456 

See  Carriers. 
when  negotiable  paper  passes  by,  transferrers  not  entitled  to 

notice 742 

DELAY, 

in  sending  notice  of  dishonor  by  usual  route 929 

DEMAND, 

on  principal,  and  notice,  to  bind  guarantor, 

See  Guaranty. 
for  indemnity,  after  loss  of  insured  property,  notice  of  as- 
signment of 450 

by  consignee,  ends  transit  of  goods 462 

See  Stoppage  en  Transitu. 
for  books  and  papers  to  be  used  in  e^•idence,  will  not  dis- 
pense with  notixje  to  produce 1259 

DEPOSITIONS, 

Notice  of  taking 1221-1256 

when  required 1221 

generally  in  writing 1222 

what  to  contain 1223 

deemed  sufficient 1224 

clerical  errors  in 1225 

name  of  officer 1226 

witnesses  need  not  all  be  named 1227 

conditional  —  insufficient 1228 

must  be  signed 1229 

time  of  taking 1230 

mistake  in  date  of  taking 1231 

general  requisites 1232 

time  of  service 1233 

decided  by  the  comt 1234 

computation  of  time  and  distance 1235 

absence  of  statute  or  rule 1236 

not  always  governed  by  distance 1237 

not  fixed  by  special  cii'cumstances 1238 

except  when  unusually  short 1239 

fixed  by  statute,  may  be  shortened  by  the  court  .     .  1240 


^58  INDEX. 

DEPOSITIONS  —  Continued.  Section 

objections  on  account  of  shortness  of,  when  made     .  1241 

party  objecting  must  show  himself  entitled  to  time  1242 

service  of 1243,  1300,  1301 

insufficient 1244 

upon  several  co-parties 1245 

strict  personal,  not  required 1246 

proof  of 1247 

upon  attorneys  in  partnership 1248 

when  deposition  to  be  used  in  two  cases 1249 

postponement  by  consent 1250 

effect  of  acknowledgment  of  service 1251 

alteration  of 1252 

objections  waived 1253 

by  presence  at  taking 1254 

party  may  be  present  without  waiver 1255 

effect  of  adjournment  without  consent 1256 

DESCRIPTION, 

in  title  papers,  sufficient  to  give  notice  to  purchasers      .     318-320 
of  property,  in  original  process  by  publication      ....     1059 

in  published  notice  of  judicial  sale 1088 

of  debt  in  mortgage,  what  is  sufficient 180-185 

errors  in,  how  registry  of  instrvmients  affected  by, 
See  Eegistration  of  Instruments. 
DESTRUCTION, 

of  records,  does  not  affect  notice  by  prior  registration    .     .      157 

DILIGENCE, 

purchaser  of  real  or  personal  property,  put  upon  inqfuiry, 

bound  to  exercise 17 

imputation  of  bad  faith  from  want  of 11 

purchaser  of  negotiable  instruments  bound  to  exercise  .     .        87 
in  prosecution  of  suit,  necessary  to  notice  by  lis  pendens    357-359 
of  holder  of  bill  or  note  in  presenting  for  acceptance  or  pay- 
'        ment,  and  giving  notice 990, 991 

DIRECTOR, 

of  bank,  notice  to,  affects  corporation 683 

corporation  not  affected  with  knowledge  of  every  fact 

known  to 683,  683a 

of  corporation,  place  of  business  of,  where  notice  may  be 
served 866 

DISHONOR, 

Of  commercial  paper,  notice  of,   ...     .     Ch.  VI,  §§  702-1028 

by  wJiom  given 702-728 

to  whom  given 729-775 


INDEX,  759 

DJSRONOR— Continued.  Section 

time  of  giving 776-837 

manner  and  mode  of  giving 828-929 

waiver  and  excuse 930-1028 

See  Bills  and  Notes, 
DISMISSAL, 

of  suit,  effect  of,  upon  notice  by  lis  pendens 358 

DISSOLUTION  OF  PARTNERSHIP, 

Notice  of 481-530 

general  nature  of  partnership 481 

range  of  inquiry 482 

reason  for  requiring  notice 483 

personal  notice,  oral  or  written 484 

knowledge  derived  from  circumstances 485 

use  of  name  after  retirement 486 

effect  of  legal  notice  of  dissolution 487 

corporation  using  partnership  name 488 

unnecessary  to  those  ignorant  of  the  partnership    .      .     489, 490 

general  knowledge  of  partnership  sufficient    ....  491 

dormant  partners    .     .     .     . " 492 

dormant  with  respect  to  particular  transaction    .     .     .  493 

must  be  unknown 494 

known  to  some,  unknown  to  others 495 

dissolution  by  death 496 

dissolution  by  bankruptcy 497 

effect  upon  surviving  or  solvent  partners 498 

manner  of  giving 499 

communication  by  mail 500 

when  not  conclusive  unless  received 501 

to  agent  or  servant 503 

altering  signs,  etc 503 

public  advertisement 504 

publication  insufficient  to  affect  those  having  prior 

dealings 505 

reading  papers  not  conclusive 506 

inference  drawn  from  publication 507 

■what  are  "  prior  dealings  " 508 

discounting  notes 509 

honoring  successive  drafts 510 

renewal  of  accommodation  paper 511 

single  purchase 513 

to  new  customers 513 

time  of  publication 514 

publication  in  newspaper 515 

when  published 516 


7  GO  INDEX. 

DISSOLUTION  OF  PARTNERSHIP  —  CoJihnwed.  Section 

selection  of  newspaper 517 

manner  open  to  inquiry 518 

English  and  American  doctrine 519 

liability  of  retii-ing  partner  affected  by  subsequent  con- 
duct       520 

estoppel 521 

example  of  new  customer  entitled  to  actual  notice  .     .  522 

knowledge  of  expiration  of  partnership 523 

notice  of  limited  partnership 524 

special  partnership 525 

restrictions  and  limitations 526 

assumption  of  excess  of  authority  by  one  partner  .     .     .  527 

misapplication  of  funds 528 

effect  of  dissolution  upon  guarantors 529 

Onus  probandi 530 

DIVERSION, 

of  accommodation  paper,  notice  of 946 

DIVORCE, 

and  alimony,  in  suits  for,  service  by  publication  ....  1083 

DRAWER, 

of  biU,  notice  of  dishonor  should  be  given 739,  730 

See  Bills  and  Notes. 
EASEMENT, 

possession  is  notice  to  purchasers  of  reservation  of    .     .     .  300 

EJECTMENT, 

pendency  of  action  of,  notice  to  purchasers 343 

of  warrantee  of  title,  and  notice  to  warrantor      .     .       480c-480/ 

EMPLOYEE, 

misconduct  of,  liability  of  employer  for  fixed  by  notice      .  480fc 

ENGLISH  REGISTRY  LAWS, 

decisions  under,  as  to  the  effect  of  registration      104-106,  110-111 

EQUITABLE  INTEREST, 

effect  of  filing  conveyance  of,  for  record 254 

notice  to  purchasers  of 97 

See  PUECHASEES. 

EQUITABLE  MORTGAGES, 

under  English  and  Irish  registry  acts 105-109 

ERRORS, 

in  record  of  instrument,  how  registry  affected  by      .     .     .  147 

in  description 148, 149, 159 

after  fihng  for  record 149 

to  whom  is  the  oflScer  responsible  for  .......  150 


INDEX.  761 

ERRORS  —  Continued.  Section 

notice  unaffected  by 152 

partial  omission 153 

entire  omission  . 154 

early  American  authorities 155, 156 

in  amount  secured  by  mortgage 158 

fraudulent  concealment  by  officer 160 

immaterial,  or  clerical,  will  not  affect  registry  ....  161 

principle  governing  question 163 

failure  to  record  in  proper  time 163 

in  indexing  records 164-173 

See  Index. 
or  omission  in  instrument  filed  for  record,  effect  of,  when 

misleading 174 

insufficient  description 175 

in  numbering  tracts 176 

in  description  of  chattels 177 

of  debt  due  on  mortgage 178 

w^hen  conditions  insufficiently  expressed 179 

when  with  sufficient  certainty 180-185 

in  sheriff's  return  of  judicial  sale,  effect  of 1094 

in  return  of  process,  cured  by  amendment 1381 

when  immaterial 1369 

EVIDENCE, 

of  title,  possession  is, 

See  Possession. 
notice  to  produce  books  and  papers  to  be  used  in  .     .      1257-1292 

See  Books  and  Papers. 

secondary,  of  written  instrument,  when  admissible  .     .     .  1258 

parol,  in  aid  of  defective  return  of  process 1883 

EXCUSES, 

for  failure  of  notice  of  dishonor  of  commercial  paper      .  976-1028 

of  a  general  nature,  enumerated 976 

inevitable  accident 978 

prevalence  of  malignant  fever 979 

existence  of  war 980 

interdiction  of  commerce 981 

actual  hostilities 983 

the  late  war 983 

interruption  of  postal  communication 984 

war,  where  note  payable 985 

will  not  excdse  if  intercourse  legal 986 

loss  of  note  by  war,  no  excuse 987 

entitled  to  notice  when  obstruction  removed  .     .     988-992 

party  not  required  to  violate  law  of  his  domicile  .     .  989 


762  iijDEX. 

EXCUSES  —  Continued.  Section 

absconding  of  party  liable  —  due  diligence  required     .     990,  991 

will  not  excuse  notice  of  facts  excusing  demand  .     .     .  991 

of  a  special  chai-acter  enumerated 977 

death  of  holder 993 

sudden  sickness  and  death  of  agent 994 

sickness  must  be  sudden  and  severe 995 

treated  as  waiver 996 

bill  di'awn  for  benefit  of  drawer 997 

note  for  accommodation  of  payee 998 

for  accommodation  of  drawee  or  acceptor 999 

not  excused  by  promise  of  drawee  to  provide  for  bill     .  1000 

no  funds  in  hands  of  drawee 1001-1003 

no  right  to  expect  payment      • 1004 

absence  of  funds,  no  excuse  when  payment  expected  .  1005 
balance  in  hands  of  drawee  not  always  good  grounds 

for  expectation 1006 

no  reasonable  expectation  of  payment      ....  1007 

mere  existence  of  credit  insufficient 1008 

expectation  of  payment  must  continue  to  maturity  1009 

need  not  be  expected  from  drawee 1010 

promise  from  di'awee 1011 

where  drawee  has  already  honored  drafts      .     .     .  1012 

running  account  between  parties 1013 

suspecting  absence  of  funds,  no  excuse 1014 

indebtedness  of  drawer  to  drawee,  no  excuse  .     .     .  1015 
no  expectation  of  funds  at  j^lcice  of  xoayment,  no  ex- 
cuse       1016 

absence  of  funds,  no  excuse  for  failure  to  notify  in- 

dorser 1017-1019 

former  partnership  between  di'awer  and  drawee,  no 

excuse 1020 

partner  drawing  upon  his  firm,  not  entitled  to  notice  1031 
maker  and  indorser     partners,  and  consideration 

received  by  partnex'ship,  no  excuse 1023 

fraud  by  indorser  excuses  failure  of  notice  to  him    .     .  1023 

motives  for  indorsement,  immaterial 1034 

adding  word  ' '  surety  "  will  not  excuse 1025 

present  when  payment  refused,  no  excuse 1026 

attachment  of  funds,  no  excuse 1027 

note  void  at  inception,  notice  unnecessary      ....  1028 
EXCUSE  AND  WAIVER, 

of  demand  and  notice  to  guarantors 426,  427 

of  notice  of  dishonor  of  commercial  paper, 
See  Excuse. 
See  Waiver. 


INDEX.  763 

EXECUTION  SALE,  Section 

purchaser  at,  being  the  creditor,  held  not  purchaser  for 

value 228 

notified  of  prior  conveyance  by  registry  prior  to  sale  .     .       229 
interest  of  mortgagee,  not  affected  by  bidding  at  ...     .      230 
purchaser  at,  protected  by  good  faith  of  creditor  ....      233 
registration  of  deed  prior  to,  gives  precedence  over  judg- 
ment hen 239 

after  purchase  at,  notice  of  prior  unregistered  conveyance, 

too  late 266 

notice  of,  by  publication 1086-1104 

See  Judicial  Sales. 
EXECUTOR, 

notice  to 693 

EXPRESS  NOTICE, 

definition  of  —  distinguished  from  notice  by  implication     .      6,  7 

FACTOR, 

may  give  notice  of  stoppage  in  transitu 477 

FACTS, 

of  which  judicial  notice  is  taken 1403-1417 

See  Judicial  Notice. 

FILING, 

of  instrument  for  registry,  time  within  wliich  to  take  place      101 

consequences  of  delay  in 102 

effect  of  error  in  recording  subsequent  to 149 

instruments  for  record,  notice  to  purchasers  from  the  time 

of 162,  201 

should  be  filed  in  their  true  character 186-191 

should  be  in  proper  county 192-195 

effect  of  withdrawing  from  files  after 255 

notice  of  motion,  date  of 1196 

FORECLOSURE, 

of  mortgages,  doctrine  of  lis  pendens  in  actions  for  .     .     .    342a 
suits  —  service  by  publication  —  notice  should  describe  prop- 
erty       1059 

FORM, 

of  notice  of  dishonor  of  commercial  paper 835 

FRAUD, 

disregard  of  notice  amounting  to 9,  89,  90,  93 

of  agent,  principal  not  to  be  benefited  by 32 

purchaser  guilty  of,  not  protected 63 

not  imputed  to  one  who  withholds  mortgage  from  record, 

with  knowledge  of  subsequent  purchaser 253 

practiced  by  agent 257 


7C-1  INDEX. 

GAEXISHEE,  SECTION 

affected  by  notice  of  prior  assignment  of  chose  in  action    .  434 
GEOGRAPHICAL  FACTS, 

of  which  judicial  notice  is  taken 1410 

GUARANTEE, 

notice  from,  when  necessary  to  fix  liability  of  guarantor, 
See  Guaranty. 
GUARANTOR, 

may  give  notice  to  carrier,  of  stoppage  in  transitu    .     .     -.  479 

what  necessary  to  fix  liability  of. 

See  GUAKANTY. 

GUARANTY, 

notice  of 386-427 

different  forms  of  collateral  UabiUty 386 

division  of  subject 387 

conflicting  decisions  as  to  notice  of  acceptance       .     .     .  388 

early  authorities 389 

guarantor  entitled  to  notice  —  absolute  guaranty      .     .  390 

proposal  to  guaranty 391 

letter  of  credit  held  to  be  proposal 392 

reason  for  notice  of  proposed  guaranty 393 

absolute  guaranty  —  notice  not  required 394 

distinction  between  different  kinds  of  guaranties  .     .     .  395 

uncertainty    of    demand 396 

general  indefinite  letters  of  credit 397 

definiteness  of  amount 398 

guaranty  of  proposed  credit 399 

absolute  guaranty  of  uncertata  amount 400 

notice  of  acceptance  held  unnecessary    •     .     .     .     .  401 

continuing  absolute  guaranty 402 

principles  regarded  as  settled 403 

weight  of  authority 404 

rule  as  to  indefinite  letters  of  credit 405 

time  of  giving  notice  of  acceptance 406 

notice  of  action  on  faith  of  the  guaranty 407 

change  of  manner  of  reimbursement 408 

report  of  particular  transaction,  not  generally  required  .  409 

notice  of  state  of  accounts,  on  demand  of  guarantor       .  410 

notice  of  principal's  failure 411 

conflict  of  authority 412 

early  Massachusets  cases 413 

demand  and  notice  held  necessary 414 

later  decisions,  contra  to  above 415 

Indiana  authorities 416 

negligence  of  guarantee 417 


INDEX.  765 

GVARAJ^TY— Continued.  Section 

rule  in  Connecticut  —  absolute  guaranty 418 

uncertainty  of  amount 419 

means  of  knowledge  within  reach  of  guarantor       .     .  420 

Pennsylvania  doctrine 421 

guaranty  and  suretyships 423 

deductions  from  authorities 423 

obligation  unUmited  and  uncertain 424 

notice  required,  not  same  as  of  dishonor  of  bills  and 

notes 423 

notice  excused  —  reasonable  time 426 

waiver  of  notice 427 

GUARDIAN, 

of  holder  of  bill  or  note,  may  give  notice  of  dishonor     .     .  727 
HEIR, 

purchaser  from,  without  notice  of  unregistered  deed  from 

ancestors    .    • 217-223 

protected,  the  same  as  though  he  purchased  from  ancestor 

without  notice 217 

reasons  assigned  for  the  rule 218 

held  not  to  be  protected,  because  title  never  descended     •  219 

the  better  reason  in  favor  of  innocent  purchaser  from  heir  220 

review  of  authorities,  jji-o  and  con 221 

weight  of  authority,  and  governing  principle    ....  222 

HIGHWAYS, 

public  Uability  of  municipal  corporations  for  failure  to  keep 

in  repair ....  480gf 

HISTORICAL  FACTS, 

of  which  judicial  notice  is  taken 1411 

HOLDER, 

of  note  or  bill,  generally  the  proper  party  to  give  notice  of 

dishonor 702 

need  not  be  for  value 716 

may  hold  as  coUateral  security 721 

adoption  by,  of  notice  from  stranger 722 

when  may  choose  between  places  of  sending  notice     .     894-896 

misled  by  place  of  date 926 

HOURS, 

of  giving  notice  of  dishonor  of  negotiable  paper,  at  place  of 

business 788 

at  place  of  residence 789-791 

nine  o'clock  P.  M.,  held  not  too  late 790 

when  left  too  late  on  day  of  dishonor,  may  serve  for 

next  day 791 


706  INDEX. 

HOURS  —  Continued.  Section 

unreasonably  early,  for  sending  notice  of  dishonor  by  mail  806 

mail  closed  before  two  o'clock  A.  M.,  too  early  .     .     .     .  807 

five  o'clock  A.  M.,  too  early  for  business 808 

six  o'clock  the  hour  of  closing,  too  early 810 

ten  minutes  past  nine  A.  M.,  held  not  unreasonably  early  811 

might  be  reasonably  earlier  than  nine 812 

half-past  nine  held  too  early 813 

of  closing  mail  determines  whether  notice  should  be  sent 
thereby 807,814 

of  mailing  notice  of  dishonor,  to  non-resident,  will  deter- 
mine whether  in  time 821 

HUSBAND  AND  WIFE, 

relative  rights  and  liabilities  of,  affected  by  law  of  agency  .  671 

wife  affected  with  notice  by  knowledge  of  husband    .     .  679 

confined  to  transactions  in  which  he  is  active       .     .     .  680 

IGNORANCE, 

voluntary,  imputed  to  one  neglecting  to  make  taquiry  .     .      279 

IMPLICATION, 

notice  by 8-36 

insufficient  to  affect  purchaser  of  real  estate      .     .     .     245-252 
sufficient  to  affect  purchasers  of  real  estate  ....     249-251 
of  authority  of  agent  to  give  notice  of  dishonor  ....       720 
INDEMNITY, 

contracts  of,  affected  by  notice 480Z 

measure  of  damages 480»i 

taken  by  indorser,  not  always  a  waiver  of  notice .     .     .     943-953 
INDEX, 

to  record  of  instrument,  effect  of 164 

failure  to,  does  not  affect  record 165 

effect  of  indexing  under  Iowa  statute .       167 

sufficient  to  put  upon  inquiry 168 

held  part  of  record 169 

making  of,  an  official  act  of  which  grantor  has  no  control  .       170 

mortgagee  not  affected  by  officer's  failure  to 171 

held  no  part  of  the  record 172,  173 

INDORSEMENT, 

by  partnership  —  notice  of  dishonor 752 

of  renewal  note  considered  as  waiving  notice 953 

See  Indorsee. 
See  Bills  and  Notes. 
INDORSER, 

of  bill  or  note,  notice  of  dishonor  should  be  given     .  729,  734r-741 
need  not  be  Indorser  for  value 735 


INDEX.  767 

mDORSER- Continued.  Section 

may  be  from  any  subsequent  party 736 

case  of  partial  dishonor,  liability  pro  tanto 737 

over-due  negotiable  paper,  governed  by  same  rule  .     .    738,  739 
when  re-issued  by  indorser,  notice  of  subsequent  dis- 
honor unnecessary 740 

paper  piu-chased'  at  indorser's  request  —  unnecessary  .     .       741 

when  delay  in  giving  notice  chargeable  to 925-928 

waiver  of  notice  by 95o 

See  Waiver. 
when  failure  of  notice  to,  will,  and  will  not,  be  excused  1017-1028 

See  Excuses. 
INFANT, 

notice  of  dishonor  of  negotiable  insti-ument  by    ...     .  727 

notice  of  dishonor  of  negotiable  instrument  to     ...     .  773 

service  upon,  of  notice  or  summons 1316 

sti'ict  conformity  to  law  required 1158 

INFERENCE, 

of  fact,  implied  notice  an 8,  40 

of  law,  constructive  notice  an 8,  42 

of  bad  faith  by  jury,  from  circumstances 88,  note 

from  general  language  of  return 1377 

INFORMATION, 

direct,  is  express  notice ^ 6,  7 

sufficient  to  put  upon  inquiry 27 

different  sources  of 28 

allaying  suspicion,  when  may  be  relied  on 35 

from  doubtful  sources,  effect  of  reliance  upon      ....  36 

vague  and  uncertain,  to  be  disregarded 258 

INJUNCTION, 

application  for,  service  of  notice 1325 

INQXHRY, 

circumstances  sufficient  to  put  purchaser  on 10 

facts  sufficient  to  excite 13 

knowledge  of  trust  sufficient  to  put  purchaser  upon  ,     .     .  21,  22 

inadequacy  of  price  sufficient  to  excite 23,  24 

relationship  between  parties  will  put  purchaser  on     .     .     .  25 
excited  by  notice  of  partnership  interest  in  property  pur- 
chased         26 

information  sufficient  to  excite 27 

when  fruitless,  purchaser  will  be  protected 34 

due 65a 

facts  which  excite  held  inadmissible  against  purchaser  of 

negotiable  instruments 86 


708  INDEX. 

INQUIRY  —  Continued.                                                               Section 
excited  by  inspection  of  negotiable  paper,  will  affect  pur- 
chaser               90 

examination  of  records  insuflScient  to  protect  purchaser     .       270 

possession  sufficient  to  put  purchaser  on 876, 277 

failiire  to  make  —  voluntary  ignorance 279 

excited  by  recitals  in  title  papers  should  lead  to  examina- 
tion of  papers 335 

purchaser  put  upon,  as  to  assignment  of  choses  in  action    488,  439 
for  residence  of  party  to  bill  or  note,  necessary  before  notice 
dispensed  with 913-921 

INSTRUMENTS, 

the  registration  of  which  will  operate  as  notice     .     .     .     113-123 
See  Registration  of  Instruments. 

INSURANCE, 

notice  of  assignment  of  policy  of 444-446 

effect  of  transfer  of  insured  property 447-449 

by  retiring  partner 448 

notice  and  assent  implied  from  receipt  of  premium  .  .  449 
assignment  of  demand  for  indemnity,  after  loss  .  .  .  450 
notice  of  loss 4801 

INTERCEPTION, 

of  goods  by  consignee,  ends  transit 474 

JOINT  PURCHASERS, 

do  not  always  sustain  towards  each  other  the  relation  of 

principal  and  agent 684 

JUDGMENT  CREDITORS, 

rights  of,  subordinate  to  those  of  vendor  of  goods  in  transitu      475 

JUDGMENTS, 

given  precedence  over  prior  unregistered  deeds     ....  288 
held  not  liens  upon  real  estate,  superior  to  prior  unregistered 

conveyances 240 

obtained  by  service  of  process  by  pubUcation,  only  bind 

property 1084 

not  subject  to  collateral  attack 1085 

against  sureties  cannot  be  obtained  without  process  .     .     ,  1141 
attacked  and  set  aside  for  failure  of  notice  of  trial     .       1176-1179 

assented  to  in  the  alternative  in  notice  of  appeal  ....  1214 

JUDICIAL  NOTICE  OF  FACTS, 

general  view 1403 

public  statutes,  common  law  and  general  customs     .     .     .  1404 

foreign  laws  and  customs 1405 

pubhc  treaties 1406 

public  institutions 1407 


•                  INDEX.  769 

JUDICIAL  NOTICE  OF  FACTS  — Continued.  Section 

local  customs,  special  statutes 1408 

municipal  ordinances 1409 

geographical  facts 1410 

historical  facts 1411 

election  and  appointment  of  officers 1413 

official  signatures  and  seals ^     ....  1413 

terms  of  court  and  judicial  proceedings 1414 

the  general  course  of  nature 1415 

scientific  and  other  facts  of  uniform  occurrence    .      .     .      .  1410 
facts  occurring  in  tlie  general  course  of  human  life,  the 

arts,  etc 1417 

JUDICIAL  PROCEEDINGS, 

parties  defendant  must  have  notice  of 1138 

JUDICIAL  SALES, 

Notice  of ,  by  pnblication 1086-1104 

statutory  requirement,  merely  dii'ectory 1086 

puix'haser  with  notice 1087 

description  of  property 1088 

immaterial  omissions  in 1089 

changing  name  of  paper 1090 

several  executions  in  one  advertisement 1091 

sale  may  be  adjourned 1092 

may  be  had  under  alias  execution 1093 

error  in  sheriff's  return 1094 

publication  in  paper,  when  posting  required    ....  109.") 

failure  to  give  notice  will  not  always  render  sale  void      .  1096 

strict  compliance  with  statute  required 1097 

sale  void  for  want  of  proper  notice 1098 

no  uniform  rule  as  to  publication  of  notice  of  sales      .     .  1099 

time  of  pubUcation 1100 

six  weeks'  notice 1101 

once  a  week,  for  three  months 1102 

what  constitutes  publication 1103 

posting  in  public  places 1104 

JURISDICTION, 

necessary  to  be  obtained  by  process,  to  affect  purchasers 

pendente  lite  with  notice 354 

holder  of  legal  title  must  be  impleaded 355 

should  be  stated  in  affidavit  or  declaration  for  order  of  pub- 
lication       1033 

definition  of,  and  how  obtained  by  service  of  process       .     .  1101 
for  purpose  of  hearing  motion  for  new  trial,  lost  at  end  of 

tlieterm 1203 

49 


70  INDEX. 


JURISDICTION  —  Continued.  Section 

how  obtained  by  state  courts,  of  forei^  corporations     .     .  1303 

must  be  cause  of  action  arising  within  the  state      .     .     .  1304 
reasonableness  of  rule  requiring  foreign  corporations  to 

accept  service 1305 

not  obtained  by  federal  courts  by  service  on  corporations 

foreign  to  the  district 1306, 1307 

how  obtainecf  of  foreign  corporations,  in  federal  courts  .     .  1308 

how  obtained  of  domestic  corporations  —  officers  served      .  1309 

service  upon  ticket  agent  of  raih"oad 1310 

upon  director  or  station  agent 1311 

how  obtained  in  action  against  municipal  corporation     .     .  1312 

upon  city  clerk,  insufficient 1313 

See  Service. 
KNOWLEDGE, 

distinction  between  and  notice 3 

imputed  to  one  who  has  means  of  knowing 11 

of  infirmities  of  negotiable  instrument  purchased,  a  ques- 
tion of  fact 85 

derived  from  recitals  in  muniments  of  title. 

See  Title  Papers. 
of  facts  sufficient  to  excite  inquiry,  raise  inference  of  no- 
tice of  assignment 438,  439 

of  dissolution  of  pai'tnership,  derived  from  circumstances  .  485 
of  partnership,  generally  sufficient  to  entitle  one  to  notice 

of  dissolution 491 

of  trustee  before  creation  of  trust 694 

of  dishonor,  not  necessary  at  time  of  giving  notice   .     .     .  723 
previously  acquired,  of  place  of  residence  of  party  to  bUl 

or  note 922 

of  laches,  subsequent  promise  must  be  made  with,  to  amount 

to  waiver  of  notice 972-975 

See  Bills  and  Notes. 
See  Waiver. 

will  not  excuse  faUure  to  serve  original  process     ....  1146 

LANDLORD  AND  TENANT, 

tenant's  possession  as  notice  of  landlord's  title       .     .     .     281-286 
the  rights  and  liabilities  growing  out  of  the  relation  of,  af- 
fected by  notice 578-650 

notice  to  quit  —  a  reciprocal  right 578 

division  of  subject 579 

statutory  provisions 580 

nature  of  tenancy  requiring  notice 581 

frona  year  to  year 582 

growing  out  of  possession  under  contract    ....  583 


INDEX.  7  1 1 

LANDLORD  AND  TENANT  —  C'onhni<ed.  Section 

occupancy  with  owner's  consent 584 

holding  over  term 585 

lease  void  under  statute  of  frauds 586 

implied  agreement  sufJicient 587 

when  payment  of  rent  not  essential      ....  588 

possession  by  mortgagor  after  forfeiture      ....  589 

general  tenancy  at  will 590 

termination  of  strict  tenancy  at  will 591 

mere  occupant  not  entitled  to  notice 593 

contract  of  purchase  by  trespasser  will  not  entitle  him 

to  notice 593 

trespasser  negotiating  for  lease  not  entitled  to  notice     .  594 

bailiff  or  servant  of  owner  not  entitled  to  notice      .     .  595 
general  tenancy  at  will  not   created   by  holding  over 

term 596 

tenant  for  life  of  another  not  entitled  to  notice  .     .     .  597 

tenant  disputing  landlord's  title  not  entitled  to  notice  .  598 

grantee  of  mortgagor  not  entitled  to  notice    ....  599 

tenancy  strictly  at  will  or  by  sufferance 600 

tenancy  by  the  quarter 601 

when  owner  of  premises  may  elect  as  to  nature  of  ten- 
ancy    605 

holding  over  under  agreement  for  new  lease  ....  603 

proof  of  tenancy  from  year  to  year 604 

bmlhens  and  benefits  equally  divided 605 

increase  of  rate 606 

time  of  notice 607 

regulated  by  statute 608 

must  expire  at  commencement  of  new  term     .     .     .  609 

when  tenancy  by  the  quarter 610 

tenants  from  month  to  month 611 

governed  by  taking  possession  —  principal  and  acces- 
sorial subject  of  demise 612 

the  different  kinds  of  uncertain  tenancies 613 

circumstances  by  whicli  may  be  determined     .     .     .  614 

by  whom  notice  should  and  may  be  given       ....  615 

joint  lessees  or  lessors 616 

partners 617 

one  giving  notice  as  agent  of  co-tenant 618 

agent  must  have  authority  at  time  of  giving  notice  619 

agency  must  extend  to  the  duty  undertaken      .     .  620 

when  authority  inferred 621 

by  corporation 623 

by  receiver 623 

when  should  be  by  tenant 624 


772  INDEX. 

LANDLORD  AND  TENANT  — Continued.  Section 

when  by  landlord 625 

to  whom  given 636 

joint  tenants,  tenants  in  common,  partners       .     .     .  627 

to  corporation 628 

form  and  sufficiency 629 

address  of  written  notice 630 

what  to  contain 631 

statement  of  cause 632 

time  to  be  mentioned  in  general  terms     ....  633 

tenant  from  week  to  week 634 

must  not  demand  possession  forthwith      .     .     .  635 

undue  strictness  not  required 636 

description 637 

substantial  accuracy  sufficient 638-640 

service 640 

may  be  waived 641 

voluntary  smTender  by  tenant 642 

by  parol,  and  acceptance  by  landlord     ....  643 

offering  to  let,  not  waiver  of  notice  by  landlord      .  644 

parol  surrender  must  go  into  immediate  effect  .     .  645 
verbal  license  to  suixender  tenancy  from  year  to 

year 646 

defects  in  notice  may  be  waived 647 

waiver  of  rights  under  notice 648 

wiU  not  be  presumed  frojtn  acceptance  of  rent  by  an 

unauthorized  person 649 

mere  permission  to  remain  after  notice,  no  waiver    .  650 
LAWS, 

of  which  judicial  notice  is  taken '^.     .     .     .  1404 

not  judicially  noticed 1405,  1408 

LEASE, 

assignment  of,  properly  recordable 116 

verbal,  termination  of  by  notice  to  quit, 

See  Landlord  and  Tenant. 

LESSEE, 

possession  by,  changed  to  possession  as  owner,  effect  of  as 

notice 303 

LETTER  CARRIERS, 

notice  of  dishonor  of  commercial  paper  served  by    .     .    869-874 
See  Bills  and  Notes. 

LETTER  OF  CREDIT, 

notice  of  acceptance  of,  and  of  failure  of  principal, 
See  Guarantor. 


INDEX.  773 

LIABILITIES,  '  Section 

notice  by  which  certain,  created      .     .     .     .     Ch.  Ill,  §§  378-480 
See  Acceptance. 
"    guaeanty. 
"    Assignment. 
"    Carriers. 
"    Stoppage  in  Transitu. 

for  tort  fixed  by  notice 480gr-480fc 

notice  by  which  certain,  extinguished  or  modified  Ch.  IV,  §§  481-650 
See  Dissolution  of  P^vrtnership. 
"    Carriers. 
"    Arrival. 

"    Landlord  and  Tenant. 
LIEN, 

for  purchase  money  of  chattels,  undisclosed 71 

notice  of,  from  recitals  in  title  papei-s , 
See  Title  Papers. 
LIS  PENDENS, 

notice  to  purchasers  by 337-377 

Lord  Bacon's  rule 337 

pubUc  policy 338 

doctrine  of  constructive  notice  applied 339 

views  of  Judge  Story 340 

of  Chancellor  Kent 341 

rule  of  equity  jurisprudence 342 

various  actions  in  which  the  doctrine  has  been  apphed  342a 

applied  to  action  of  ejectment 343 

confined  to  proceedings  in  courts  of  general  jurisdic- 
tion        343 

the  doctrine  indispensable 344 

applied  in  partition  suits 342a,   343 

views  of  Lord  Hardwicke 345 

effect  of  revivor 346 

payment  of  consideration  no  protection  to  purchasers  .  347 

commencement  of  suit 348 

service  of  process 349 

harshness  of  the  rule 350 

property  to  be  identified 351 

alimony 352 

creditor's  biU 353 

jurisdiction  necessary 354 

holder  of  legal  title  must  be  impleaded '    355 

equitable  interests  between  co-defendants  unaffected  356 

suit  must  be  continuously  prosecuted 357 

effect  of  dismissal 358 


774  LNDEX. 

LIS  PENDENS  — Co7itimied.  Section 

diligence  in  prosecution 359 

not  affected  by  deatli  of  party 359 

rule  not  extended  to  affect  others  than  subsequent  pur- 
chasers      360 

nor  to  affect  purchasers  from  different  source  of  title  360 

jjrior  mortgagee  unaffected 861 

foreclosure  of  prior  mortgage 363 

antecedent  equity 363,  364 

owner  of,  may  acquu-e  legal  title,  pendente  lite  .     .  365 
contingent  right  may  be  rendered  absolute,  pendente 

lite 366 

waiver  of  rights  by  plaintiff,  after  judgment  or  decree    -  367 

purchase  must  be  from  party  to  the  suit 368 

generally  confined  to  purchaser  of  real  estate    ....  369 

purchaser  of  securities  affected 370,  371 

does  not  affect  purchasers  of  negotiable  instruments     .  372 

peculiar  kind  of  property 373 

statutory  provisions 374 

purchaser  not  affected  personally 375 

statute  of  limitations  does  not  run  during  suit  ....  376 

purchaser  at  execution  sale 877 

LOST  BILL, 

negotiable,  notice  of  to  pui-chasers,  not  sufficient  by  adver- 
tisement   81 

MACHINERY, 

dangerous,  liabUity  of  owner  for,  fixed  by  notice.     .     .     .  480A; 

MAIL, 

notice  of  dissolution  of  partnership  by 500,  501 

notice  of  dishonor  of  commercial  paper  by     807,  815,  816,  869-929 

See  Bills  and  Notes, 
MAKER, 

of  note,  when  may  give  notice  of  its  dishonor 713 

MANNER  AND  MODE, 

of  giving  notice  of  dishonor  of  negotiable  instrument   .     828-929 
See  Bills  and  Notes. 

MARRIAGE  SETTLEMENT, 

purchaser  of  real  estate  with  notice  of 51 

registry  of,  required  by  English  statute 106 

MARRIED  WOMAN, 

when  party  to  bill  or  note  may  give  notice  of  dishonor  .     .  728 

MECHANIC'S  LIEN, 

notice  of 1155 


INDEX.  775 

MESSENGEE,  Section 

notice  of  dishonor  of  commercial  paper  sent  by,  sufficient 

if  in  time 889 

MINOR, 

should  be  notified  of  dishonor  of  bill  or  note  to  which  he  is 

a  pai-ty 773 

may  give  notice  of  dishonor  of  bill  or  note  held  by  him      .  727 

service  of  summons  in  suits  against 1316 

MISCELLANEOUS  PROCEEDINGS, 

of  which  notice  given  by  publication 1122-1134 

general  remarks 1123 

conti-act  for  pubhc  improvements 1123 

special  assessments 1124 

intention  to  order  improvements 1125 

opening  street 1126 

eminent  domain 1127 

sales  by  guardians  and  cm'ators 1128 

executors'  sales 1129 

sold  for  paying  debts  of  decedent 1130 

executor's  notice,  how  addi-essed 1131 

meeting  to  divide  township 1132 

mortgagees'  sales 1133 

matters  elsewhere  treated 1134 

MORTGAGE, 

released  by  one  other  than  mortgagee,  should  put  ptirchaser 

from  mortgagor  on  inquiry 20 

of  chattels,  how  affected  by  registry  laws 77 

equitable,  under  British  registry  acts 105-109 

registered,  claim  under,  as  against  unregistered  wiU      .     .  108 

agreement  to  execute,  a  proper  subject  for  registration  .     .  Ill 

assignment  of,  is  recordable 117 

conditions  of,  should  be  expressed  to  operate  as  notice  when 

registered 179,  273 

when  with  sufficient  certainty 181,  183 

securing  future  advances,  registration  of,  as  notice     .     .  182 

secret,  record  of,  wiU  not  operate  as  notice 191 

two  simultaneously  executed  and  delivered,  effect  of  prior 

registiy  of  one 197 

purchaser  with  knowledge  of  unrecorded 253 

assignee  of,  regarded  as  piu-chaser 263 

description  in,  of  debt  secured  by,  and  of  property  incum- 
bered    273 

See  Registration  of  Instruments. 
notice  from  recitals  in, 

See  Title  Papers. 


776  INDEX. 

MORTGAGEE,                                                                               Section 
not  prejudiced  by  officer's  failure  to  index  record  of  mort- 
gage       171 

sales  by 113S 

MOTIONS, 

And  other  proceedings  in  court,  notice  of    ...     .      1182-1207 

by  entry  in  book 1183 

when  should  be  given 1184 

presence  of  counsel  will  not  waive 1185 

parties  charged  with 1186 

motion  in  the  nature  of  summary  judicial  proceeding      .  1187 

to  set  aside  sheriff's  sale 1188 

filed  dm-ing  term  of  court 1189 

examples  under  different  statutes 1190 

motion  to  dismiss  appeal 1191 

sufficiency  of 1192 

substantial  accuracy 1193 

against  constable 1194 

designation  of  court 1195 

date  of  ffling 1196 

circumstances  affecting  sufficieucy 1197 

should  generally  be  in  writing 1198 

service      1199-1203 

upon  party  or  his  attorney  —  generally  from  one  attor- 
ney to  another 1199 

upon  the  party 1200 

time 1201 

motion  for  new  trial 1202 

waiver  by  appearance 1203 

reference 1204 

reiustatement  of  case 1205 

rule  to  show  cause 1206 

of  examination  of  accounts 1207 

MUNICIPAL  CORPORATIONS, 

UabUity  of,  for  torts,  fixed  by  notice 480sr 

MUNICIPAL  ORDINANCES, 

extent  to  wliich  judicially  noticed 1409 

NAME, 

error  in,  wiU  not  affect  notice  of  dishonor  from  proper  party  718 
NEGLIGENCE, 

for  purchaser  put  upon  inquiry,  not  to  inquire      .     .     .     .  17,  88 

by  wliich  purchasers  of  negotiable  instruments  affected 
with  notice 82,  87 

and  bad  faith  of  purchaser,  questions  of  fact 83 


INDEX.  777 

NEGLIGENCE  —  Continued.  Section 

notice  given  by  caiTier  will  not  exempt  from  consequences 

of 558-561 

in  failing  to  inquire  amounts  to  voluntary  ignorance      .     .      279 

NEGOTIABLE  INSTRUMENT, 

purchaser  of,  before  maturity,  only  affected  with  actual  no- 
tice of  infii-mities 36a,  40^2a,  80-94 

lost  bill 81 

holder  of,  only  affected  when  grossly  negligent  in  pur. 

chasing 82 

bad  faith  requisite  to  defeat  rights  of  purchaser  before 

matm-ity 83 

pm-chaser  without  notice  protected 84 

knowledge  a  question  of  fact 85 

facts  which  excite  iiiquiry  held  inadmissible  against  pur- 
chasers before  maturity 86 

circumstances  which  put  purchaser  on  his  guai'd    ...        87 

bad  faith  an  inference  of  fact 88,  note  1 

inquiiy  excited  by  inspection  of  paper 90 

when  "  general  notice  "  sufficient 91 

suspicious  circumstances 92 

payment  before  and  after  notice 93 

patent  defects  affecting  pm-chasers 94 

unaffected  by  lis  xnndcns 372 

without  indorsement  notice  of  assignment  held  necessary      442 

Notice  of  dishonor  of 702-1028 

hy  icJiom  given 702-728 

to  whom  given 729-775 

time  of  giving 776-827 

manner  and  mode  of  giving 828-929 

waiver  and  excuse 930-1028 

See  Bills  and  Notes. 
NEWSPAPER, 

what  is 1066 

containing  advertisement  of  dissolution,  reading.  \\W\.  not 

charge  old  customer  with  notice 504-507 

advertisement  in,  will  not  be  sufficient  notice  to  limit  car- 
rier's liability 546 

publication  of  original  process  in 1065-1067 

effect  of  changing  name  of,  upon  published  notice  of  judi- 
cial sale 1090 

NON-JUDICIAL  INVOLUNTARY  SALES, 

Notice  of,  by  publication 1105-1131 

strict  compliance  with  statute  required 1105 

tax  sales 1106 

publication  an  official  act 1107 


7  i  S  INDEX. 

NON-JUDICIAL  INVOLUNTARY  SALES  —  Continued.  Section 

when  state  printers  designated 1108 

should  state  the  amount  due 1109 

should  give  the  name  of  tax  debtors 1110 

time  fixed  by  statute  to  be  closely  followed     ....  1111 

sale  held  void  for  failure  of  notice,  after  fifty  years      .  1112 

construction  of  statute  as  to  time  of  publication      ,     .  1113 

three  successive  publications  for  three  months      .     .  1114 

during  three  successive  weeks      .     .  v 1115 

should  commence  after  tax  becomes  due     .     .     .     .  1116 

form  and  sufficiency 1117 

when  form  prescribed  by  statute 1118 

proof  of  publication 1119 

statutory  mode  of,  exclusive 1130 

required  certificate  must  be  contained  in  statement  .  1121 

NON-RESIDENTS, 

service  of  summons  upon 1358,  1359 

NOTES, 

See  Bills  and  Notes. 
See  Negotiable  Instruments. 
NOTICE, 

Different  kinds  of 1-47 

actual  notice 1-36 

constructive  notice 37-47 

to  purchasers 48-377 

of  different  kinds  of  property  or  securities 48-94 

registration  of  instruments 95-272 

notice  by  possession 273-306 

notice  from  title  papers 307-336 

lis  pendens 337-377 

by  which  certain  liabilities  are  created 378-480 

of  acceptance  of  proposals 378-385 

of  guaranty 386-427 

of  assignment 428-450 

to  carriers  and,  other  bailees 451-480 

by  loliicli  liability  is  extinguished  or  modified  ....    481-650 

dissolution  of  partnership 481-530 

limiting  the  liability  of  common  carriers  and  other 

bailees 531-577 

landlord  and  tenant 578-650 

between  principal  and  agent 651-701 

of  agency 651-671 

to  an  agent 672-695 

by  an  agent 696-701 

of  dishonor  of  commercial  paper 702-1028 

See  Dishonor. 


INDEX.  770 

NUISANCE,  Section 

liability  for,  fixed  by  notice 480{/,  ASOk 

notice  to  abate 480/i 

OCCUPANCY, 

by  tenant,  notice  of  landlord's  title 284, 285 

by  church  society,  is  notice  to  purchasers 289 

See  Possession. 

OFFER, 

continuing  and  limited,  notice  of  acceptance  of     ...     .      378 
by  auctioneer,  what  amounts  to  acceptance  of      ....      381 

OFFICER, 

before  whom  acknowledgment  of  deeds  may  be  made  .  130-136 
See  Acknowledgment. 

by  whom  instrument  may  be  recorded 144-146 

.  145,  146 

.  .     6836 

1052-1054 

.  .     1298 


by  officer  de  facto 

of  corporation,  notice  to  is  notice  to  corporation 
by  whom  publication  of  notice  to  be  ordered   . 
when  party  to  action,  by  whom  process  served 


OFFICERS, 

election  and  appointment  of,  judicially  noticed     .     .     .     .     1412 
signature  of,  judicially  noticed 1413 

OMISSIONS, 

from  notice  of  dishonor,  immaterial,  will  not  affect  .     .     836-840 

immaterial,  in  published  notice  of  judicial  sale     ....     1089 

in  original  process 1155 

ORDER  OF  PUBLICATION, 

See  Process. 

See  Publication. 

ORIGINAL  PROCESS, 

See  Process. 

PAPERS, 

notice  to  produce  to  be  offered  in  evidence  .     .     .     .       1257-1202 

See  Books  and  Papers. 
in  the  hands  of  attorney,  he  may  be  required  to  testify  to 
their  existence,  though  intrusted  to  him  in  confidence     .     1272 

PAROL, 

contract  to  convey,  purchaser  affected  with  notice  of     .     .        52 

PARTIES, 

affected  vrith  notice  by  pendency  of  suit 355,  356 

to  notes  or  bills  may  give  notice  of  dishonor    ....     703-713 

PARTITION, 

lis  pendens,  in  action  to  set  aside  decree  of       ....  342a,  343 
original  process  in  suits  for,  property  should  be  described   .     1059 


780  INDEX. 

PARTNER,  Section 

retiring,   must  give  notice    of   assignment    of   insurance 

policy 448 

dormant,  notice  of  dissolution  unnecessary 493 

who  is,  within  meaning  of  the  rule 493-495 

not  entitled  to  notice  of  dishonor  of   bill  drawn  by  co- 
partner      733 

notice  to,  of  dishonor  of  partnership  paper      ....    751,  752 

how  served  to  bind  both 878,  1314,  1315 

See  Bills  and  Notes. 
PARTNERSHIP, 

effect  of  knowledge  of,  by  one  purchasing  from  one  of  the 

partners 26 

Notice  of  dissolution  of 481-530 

See  Dissolution  op  Partnership. 
PATENT, 

to  real  estate,  notice  from  recitals  in 311,  312 

PAYMENT, 

notice  prior  to,  will  bind  jDurchasers .        60,  93 

effect  of,  when  made  on  day  of  dishonor  of  note  or  bill      .       780 

refusal  of,  at  maturity,  will  justify  notice  of  dishonor    .     .      783 

failure  of  and  qualified  refusal 784 

PENNY  POST, 

as  a  means  of  serving  notice  of  dishonor  of  bills  and  notes      772 
See  Bills  and  Notes. 

PERSONAL  PROPERTY, 

how  purchasers  of,  may  be  notified  of  adverse  interests, 

See  Chattels. 
notice  of  title  to,  from  recitals  in  title  papers, 

See  Title  Papers. 
notice  of  title  to,  by  possession. 

See  Possession. 
PLEADING, 

division  of  subject 1388 

when  necessary  to  aver  notice 1387 

action  on  guaranty 1388 

when  notice  unnecessary 1389 

facts  within  defendant's  knowledge 1390 

when  knowledge  Ues  between  the  parties 1391 

when  want  of  notice  to  be  averred 1392 

manner  of  alleging  notice 1393 

must  aver  that  it  was  given  to  proper  party    .     .      1394,  1396 
when  substituted  by  statute,  should  show  strict  compli- 
ance   1395 


INDEX.  781 

PLEADING  — Co?if/>med  Section 

should  appear  to  be  giTen  in  due  time 1396 

waiver  and  excuse  to  be  alleged 1396, 1^97 

facts  pleaded  according  to  their  legal  effect 1398 

manner  of  aveiTing  want  of  notice 1399 

admissions  in  plea  or  answer 1400 

consequences  of  defective  pleading 1401 

practice  under  the  code 1402 

PLEDGE, 

property  held  in,  will  be  subject  to  terms  of  contract  be- 
tween parties 73 

not  subject  to  secret  trusts  of  which  pledgee  had  no  no- 
tice          68 

POLICY  OF  INSUEANCE, 

assignment  of,  notice  requisite 444-447 

POSSESSION, 

Notice  by 273-306 

general  doctrine 273 

modified  by  registry  laws 274 

evidence  of  actual  notice 275 

sufficient  to  put  pvirchaser  on  inquiry 276, 277 

effect  of  knowledge  of  jjossession,  where  actual  notice  not 

required 278 

voluntary  ignorance 279 

character  of  occupancy 280 

by  tenant  under  lease 281 

of  interest  claimed  by  occupant 282 

of  interest  of  occupant's  creditors 283 

tenant's  occupancy,  notice  of  landlord's  title      .     284-286,  note 

no  evidence  of  title  in  stranger 287 

possession  must  be  actual,  notorious  and  continuous    286,  note, 

288 

occupancy  by  church  society 289 

should  be  exclusive 290 

xinequivocal 291 

when  doubtful  in  extent 292,  293 

possession  and  claim  of  right  should  be  contempora- 
neous           294-802 

instance  where  possession  and  claim  not  required  to  be 

concurrent 295 

effect  of  abandonment 296 

when  possession  referred  to  record  title 297,  298 

claim  inconsistent  with  record        299 

of  reservation  of  easement 300 


782  INDEX. 

POSSESSION— Co  jifMMteri'.                                                           Section 
exception  to  rule  requiring  claim  and  record  to  be  con- 
sistent      301 

possession  to  begin  with  uni-ecorded  title       ....     30S-304 
lessee's  occupancy,  changed  to  possession  as  owner  .     .       303 

creditors  affected  with  notice  by 305 

chattels 306 

held  insufficient  to  affect  purchasers 14 

held  sufficient 16,  78 

regarded  as  constructive 44 

of  deeds,  that  the  one  in  possession  has  an  interest  in  the 

land 46,56 

of  chattels,  not  conclusive  evidence  of  title 69 

as  notice  to  purchasers  generally 78 

of  goods  by  consignee,  ends  transit 466 

POSTING, 

notices  by  carriers,  limiting  their  liability  as  insurers,  insuf- 
ficient        538, 539 

notices  of  judicial  sales,  in  public  places 1104 

as  a  substitute  for  personal  service. 
See  Service. 
POSTOFFICE, 

to  which  notice  of  dishonor  of  bill    or    note    should   be 

directed 883-909 

See  Bills  and  Notes. 

PEACTICE  AND  PLEADING 1135-1402 

Original  process 1135-1161 

Notice  of  trial 1162-1181 

Notice  of  motions  and  other  proceedings    ....      1182-1207 

Notice  of  appeals 1208-1220 

Notice  of  taking  depositions 1221-1256 

Notice  to  produce  books  and-papers 1257-1292 

Service 1293-1360 

Return 1361-1385 

Pleading 1386-1402 

PRESUMPTION, 

of  knowledge  conclusive  from  record 97 

PRESUMPTIVE  NOTICE, 

distinction  between  and  constructive  notice 40 

when  dependent  upon  presumption  of  fact  —  actual, 

See  Actual  Notice. 
when  dependent  upon  presumption  of  law  —  constructive,  ■ 

See  CoNSTRUCTivB  Notice. 
PRICE, 

inadequacy  of,  sufficient  to  put  purchaser  on  inquiry     .     .  23,  24 


,  INDEX.  T83 

PRINCIPAL  AND  AGENT,  SECTION 

See  Agency. 
See  Agent. 
PRINCIPAL  AND  GUARANTOR, 

See  Guarantor. 
PRIORITY, 

between,  deeds  as  affected  by  registry 196-202,  256 

simultaneous  mortgages 197 

as  between  original  parties,  priority  subject  to  agreement  198 

registration  will  not  divest  accrued  rights 199 

innocent  purchaser  not  chai-ged  with  notice  of,  except  by 

the  record 200 

order  of  filing  governs 201 

deeds  recorded  in  reasonable  time  after  delivery, —  suf- 
ficient      202 

PROCESS, 

Original,  publication  of 1029-1085 

general  character  of  service  by  publication 1029 

must  conform  to  statute 1030,  1148 

suits  in  which  generally  employed 1031 

affidavit  or  declaration 1032 

must  aver  jurisdictional  facts 1033 

should  state  that  property  of  defendant  within  state  .  1084 

must  state  a  cause  of  action    .     .     , 1035 

ground  of  attachment 1036 

attachment  of  property 1037 

requisites  of  affidavit  in  New  York 1038 

example  of  sufl[icient  affidavit  in  California     ....  1039 

averment  of  "  due  diligence '' held  sufficient  ....  1040 

difference  in  statutes 1041 

conclusion  of  law  not  to  be  stated 1042 

expression  of  opinion  not  sufficient 1043 

information  and  belief 1044 

sufficient  statement  of  absence  from  state 1045 

affidavit  attached  to  other  papers 1046 

when  sufficiency  of,  presumed 1047 

not  impeachable  in  collateral  proceeding 1048 

averments  in  pleading,  same  as  in  affidavit     ....  1049 

amendments  not  allowed  after  publication  ....  lO.IO 

order  of  publication  and  notice 1051 

who  to  make  order 1052 

must  be  by  officer  designated  by  law 1053 

effect  of  change  of  order  without  authority     .     .     .  1054 

contents  of  order * .  1055 

must  contain  sufficient  recitals  to  inform  defendant  .  1056 


784  INDEX.* 

PROCESS  —  Continued.  Section 

averment  of  attachment,  in  notice 1057 

nature  and  amount  of  plaintiff's  demand     ....  1058 

foreclosure  and  partition  —  description 1059 

names  of  defendants 1060 

unnecessary  to  mention  statute 1061 

order  must  be  properly  signed 1063 

should  state  the  return  day 1063 

publication 1064 

in  newspaper 1065 

what  is 1066 

must  be  published  in  the  one  designated  ....  1067 

substitute  for  publication  in 1068 

must  be  for  full  time 1069 

computation  of  time 1070 

three  calendar  months 1071 

three  weeks  successively 1072 

last  insertion  four  weeks  prior  to  time  ....  1073 

six  weeks'  publication 1074 

when  period  cannot  be  shortened 1075 

days,  weeks  or  months 1076 

certain  time  or  certain  number  of  times     .     •     .  1077 

ten  publications  in  ten  weeks 1078 

two  weeks  in  daily  paper 1079 

proof  of  publication 1080 

must  be  to  satisfaction  of  court 1081 

affidavit  not  conclusive 1083 

divorce  and  alimony 1083 

judgment  binds  property  only 1084 

not  subject  to  collateral  attack 1085 

Original,  hy  which  judicial  proceedings  instituted    .      1135-1161 

general  nature  of  modern  summons 1135 

importance  of  due  service 1136 

when  personal  notice  required 1137 

rule  applies  to  all  judicial  or  quasi-judicial  proceedings   .  1138 

assessment  of  damages  to  property H39 

decree  in  chancery,  summary  proceedings       ....  1140 

judgment  against  sureties 1141 

divorce  and  alimony 1143 

in  actions  before  justices  of  the  peace 1143 

actions  in  rem 1144 

annulling  certificate  of  purchase 1145 

knowledge  will  not  answer  as  a  substitute  for  notice     .  1146 

must  be  written  or  printed 1147 

what  notice  or  summons  should  contain     .     .     .       1148-1157 

should  state  time  and  place 1149 


INDEX.  i  S'O 

PROCESS — Continued.  Section 

when  but  one  cause  of  action  stated 1150 

scire  fadas  —  citation  and  copy  of  petition  required  1151 

should  contain  names  of  defendants 1152 

omission  of,  held  immaterial 115i> 

mere  irregularity  in  stating,  will  not  defeat  .     .     .  1154 

immaterial  variations  and  omissions 1155 

requirements  of  different  states  as  to  certainty     .     .  1156 
when  the  purpose  of  the  action  to  be  stated      .     .     .  1157 
infant  defendants,  sti'ictness  required  in  the  inter- 
est of    1158 

when  returnable 1159 

substantial  and  technical  defects,   how  jurisdiction  af- 
fected by      1160 

jurisdiction  defined 1161 

service  of. 

See  Service. 
PROMISE, 

subsequent  to  dishonor  of  biU  or  note,  considered  as  waiver 

of  notice 957-975 

conditions  of  waiver ■ 957 

made  without  knowledge 958 

express  or  imphed  waiver 959 

mipUed 960 

promise  to  "  see  it  paid  " 961 

recitals  in  contract  acknowledging  bill 963 

must  be  unequivocal 963 

admissions  to  strangers  not  sufficient 964 

when  regarded  as  evidence  of  notice 966 

either  waiver  or  admission  of  due  notice  ' 969 

burthen  of  proof 970 

prima  facie  evidence  of  diligence 971 

evidence  of  knowledge  of  laches 972 

onus  cast  upon  the  holder    .         973 

principles  governing  the  question 974 

PROOF, '"^^ 

of  publication 1080-1082 

must  be  satisfactory  to  court 1081 

affidavit  not  conclusive 1082 

PROPOSALS, 

notice  of  acceptance  of, 

See  Acceptance. 
PUBLICATION, 

of  notice  of  dissolution,  when,  and  when  not,  effectual     504-519 

not  available  against  those  who  have  had  prior  dealings  .  504 
50 


786  INDEX. 

PUBLICATION  —  Continued.  .  Section 

insufficient,  though  printed  near  advertisement  of  old 

customer 505 

reading  paper  containing  announcement,  not  conclu- 
sive      506 

inference  drawn  from  publication 507 

what  ai-e  prior  dealings 508 

discounting  notes 509 

honoring  successive  drafts 510 

renewal  of  accommodation  i^aper 511 

single  purchase  may  be  sufficient 512 

constructive  notice  to  those  who  have  had  no  prior  deal- 
ings      513 

no  fixed  rule  as  to  time  of  publication 514 

should  be  in  newspaper 515 

where  papers  should  be  published 516 

selection  of  paper 517 

maimer  of,  open  to  inquuy 518 

English  and  American  docti'ine  —  publication  not  indis- 
pensable         519 

of  notice,  will  not  limit  carrier's  liability 533 

of  notices 1049-1134 

See  Process. 
"   Judicial  Sales. 

"    NoN- Judicial  Involuntary  Sales. 
"   Miscellaneous  Proceedings. 

PUBLIC  POLICY, 

the  foundation  of  doctrine  of  lis  pendens 338 

PURCHASERS, 

Notice  to 48-377 

when  actual  . 12 

to  use  diligence  when  put  upon  inquiry 17 

of  equitable  interest,  with  knowledge  of  legal  title  in  another  18 

with  notice  of  vendor's  lien 19 

from  mortgagor 20 

inadequacy  of  price  will  put  upon  inquuy 23,  24 

relationship  between  the  parties,  ground  for  inference  of 

notice 25 

affected  with  notice  that  property  belongs  to  partnership    .  26 

put  upon  inquiry  by  information 27 

may  disregard  vague  statements 29 

protected  after  fruitless  inquuy 34 

pendente  lite,  bound  by  notice  constractively 45 

See  Lis  Pendens. 

constructively  notified  by  recitals  in  title  papers   ....  46 


INDEX.  To  i 

PURCHASERS  —  Continued.  Section 

Difference  in  effect  of  notice  to,  of  different  kinds  of  property 

or  securities 48-94 

division  of  subject 48 

of  real  property,  by  what  kind  of  notice  affected     .     .     .  49-66 
See  Real  Estate. 

without,  from  purchasers  with,  notice 61 

with,  from  purchaser  without,  notice 62 

when  original  mala  fide  purchaser  not  protected     ...        63 

with  notice  of  umregistered  conveyance ■    .        64 

See  Unregistered  Instruments. 

of  chattels,  notice  to 67-78 

See  Chattels. 
of  negotiable  securities,  how  affected  with  notice       .     .     .  80-94 

time  when  notice  must  be  given  to  affect 92a 

See  Negotiable  Instruments. 
of  real  estate,  affected  Avith  notice  by  registry  of  prior  deed        97 

See  Registration  of  Instruments. 
to  take  advantage  of  failure  to  record  deed,  must  be  for  value      226 
put  upon  inquu-y  by  knowledge  of  possession  by  one  claim- 
ing adversely  to  gi'antor, 

See  Possession. 
notified  by  recitals  in  title  papers, 

See  Title  Papers. 
of  bills  of  lading,  bona  fide,  entitled  to  protection      .     .    472,  473 
at  judicial  sale,  with  notice 1087 

QUIT, 

notice  to,  when  given  by  agent 698-701 

written  or  verbal 699 

effect  of  subseqtient  ratification 700 

unauthorized  when  given,  vaUd  only  from  ratification     .       701 
reciprocal  right  between  landlord  and  tenant, 
See  Landlord  and  Tenant. 

QUITCLAIM  DEED, 

registration  of,  is  constructive  notice  only  of  what  I'ecord 
shows 204 

RAILROADS, 

when  their  liability  as  common  carriers  may  be  fixed  by 

notice 451-480 

See  Carriers  and  Other  Bailees. 
when  they  may  be  affected  with  notice  of  vendor's  lien  on 

goods        457^80 

See  Stoppage  in  Transitu. 


78S  INDEX, 

"RAILROADS— Continued.  Sectiow 
notice  limiting  the  liability  of,  as  insurers  of  goods  car- 
ried          531-560 

See  Carriers. 
termination  of  responsibility  of,  by  notice  to  consignee  .     563-577 
.   See  Arrival. 

RATIFICATION, 

by  principal,  of  acts  of  agent 667 

with  notice,  binds  principal 668 

effect  of  sUent  acquiescence        669 

of  notice  to  agent, —  when  validity  depends  upon      ...  691 

of  act  of  agent  in  giving  notice  for  principal 700 

valid  only  from  time  of  principal's  approval      ....  701 

of  acts  after  authority  revoked 671a 

REAL  ESTATE, 

purchasers  of,  affected  with  notice,  actual  or  constructive, 

of  adverse  claims 49-66 

when  subsequent  purchase,  in  bad  faith 50 

purchase  with  notice  of  prior  marriage  settlement      .     .  51 

parol  contract  to  convey 53 

vendor's  hen  —  vendee  required  to  perform  in  lieu  of  his 

grantor 53 

an  adopted  son's  equity  arising  out  of  contract  made  at 

time  of  adoption 54 

prior  and  subsequent  contracts  to  convey 55 

possession  of  title  deeds  as  notice  of  possessor's  rights      .  56 

purchaser,  with  knowledge  of  ti'vist,  becomes  trustee       .  57 

mortgagee,  with  knowledge  of  trusts 58 

notice  to  trustee,  to  affect  cestui  que  trust 59 

notice  prior  to  payment,  sufficient 60 

purchaser  without,  from  pui'chaser  with,  notice    ...  61 

piirchaser  with,  from  purchaser  without,  notice    ...  62 

repurchase  by  original  mala  fide  purchaser     ....  63 

unregistered  conveyances  of 64 

how  subsequent  purchasers  may  be  affected  with  notice  of  65,  66 
See  Unregistered  Instruments. 
notice  of  prior  conveyances  from  recitals  in  deeds. 
See  Title  Papers. 

RECITALS, 

in  deeds,  effect  of  as  notice  to  purchasers, 

See  Title  Papers. 
what  sufficient  in  published  notice  of  suit  ....      1055-1059 
See  Process. 


INDEX.  789 

RE(X)RD,  Section 

of  conveyances  by  grantor,  prior  to  his  acquisition  of  title  .  214 
will  not  affect  subsequent  purchaser,  who  takes  without 

further  notice 215 

contrary  doctrine  examined 216 

REFERENCE, 

notice  of ^     .     .     .     .  1204 

REGISTRATION  OF  INSTRUMENTS, 

notice  by 95-272 

the  general  scope  and  operation  of  the  statute      .     .     ,      95-112 

provided  for  by  statute 95 

object  of  American  registry  laws  to  protect  bona  fide  pur- 
chasers       .....  96 

registration  notice  to  subsequent  purchasers      ....  97 

must  be  properly  of  record 98 

prerequisites  to  valid  registry 99 

subscribing  witnesses 100 

when  instrument  to  be  filed 101 

consequence  of  delay  in  filing 102 

exceptional  legislation 103 

English  and  Irish  registry  acts 104 

equitable  mortgage 105 

registry  of  marriage  settlement 106 

Irish  act 107 

registered  mortgage  and  unregistered  will       ....  108 
registered  legal  mortgage  and  unregistered  equitable 

mortgage 109 

memorandirm  of  "  fiirther  change" 110 

agreement  to  mortgage Ill 

acknowledgment  of  execution 112 

recordable  instruments 113-123 

what  instruments  should  be  recorded 113 

reservation  of  right  of  way 114 

deed  of  assignment 115 

assignment  of  lease 116 

assignment  of  mortgage 117 

consideration  .     .           118 

instruments  not  recordable 119 

assignment  for  benefit  of  creditors 120 

certificate  of  emancipation 121 

executory  contracts 122,  123 

Btatutory  prerequisites  to  recording 124-146 

requirements  of  the  statute  must  be  complied  with     .     .  124 

necessity  for  acknowledgment 125-136 

See  ACILNOWLEDGMENT. 


790  INDEX. 

REGISTRATION  OF  INSTRUMENTS  —  Cojih'nwed.  Section 

attestiug  witnesses 137 

when  two  requii'ed 138 

witnessed  by  one,  insufficient 139 

defective  execution  held  immaterial 140 

record  iuoiierative  wnitliout  delivery 141 

dehvery  after  recording 142 

effect  of 143 

delivery  to  the  recorder  for  the  gi-antee 143a 

must  be  recorded  by  jDroper  officer 144 

by  officer  de  facto .    145,  146 

errors  in  the  record 147-173 

effect  of 147 

in  description 148 

effect  of  filing,  and  subsequent  error  in  recording    .     .       149 
to  whom  is  the  officer  responsible  for  errors    ....       150 

different  constiiiction  of  the  statute 151 

tbe  notice  unaffected  by  eiTors  in  recording    ....       152 

partial  omission 153 

entu'e  omission 154 

early  American  authorities 155,  156 

destruction  of  the  records  does  not  affect  the  notice  .       157 
effect  of  error  in  amount  secured  by  mortgage      .     .       158 

error  in  description  of  property 159 

fraudulent  concealment  by  officer 160 

immaterial  errors 161 

princiijle  governing  eiTors  in  the  record 162 

eiTors  in  the  original,  and  eiTors  of  the  recorder,  dis- 
tinguished      162 

faUiu-e  to  record  in  proper  time 168 

the  index 164-173 

See  Index. 
errors  by  the  party  filing  the  instrument    ....     174r-195 

misleading  errors  in  original 174 

insufficient  description 175 

errors  in  numbering 176 

description  of  chattels 177 

description  in  mortgage,  of  debt  due       178,  372,  note  3 

conditions  insufficiently  expressed 179 

what  degree  of  certainty  held  sufficient       .    180,  181 

mortgage  securing  future  advances 182 

descrijjtion  which  may  be  rendered  certain  by  in- 
quiry, sufficient 183 

errors  by  wliich  purchasers  not  misled,  held  imma- 
terial      184,  185 

instruments  should  be  filed  in  their  true  character    .      186 


INDEX.  791 

REGISTRATION  OF  INSTRUMENTS  —  C'o?if/nHecZ.  Section 

deed  with  defeasance  should  be  filed  as  mortgage  .  187 
should  be  recorded  as  mortgage,  and  not  as  deed 

of  conveyance 188 

same  rule  applies  where  defeasance  is  by  parol    .  189 
sheriff's  deed,  recorded  as  mortgage,  will  not  oper- 
ate as  constructive  notice 190 

record  of  secret  mortgage 191 

must  be  filed  in  proper  county 192 

effect  of  filing  in  wrong  county 193 

deposit  of  chattel  mortgage  in  wrong  town  .     .     .  194 
change  of   county  subsequent  to   filing   wiU   not 

affect  registry 195 

conflicting  titles  affected  by  priority  of  registration      196-230 
order  of  priority  between  deeds  as  affected  by  regis- 
tration        196 

See  Priority. 

reasonable  time  for  filing  instrument 202 

subsequent  purchasers  alone  affected  by  registration  203 

record  of  quitclaim  deed 204 

the  instrument  must  be  in  the  chain  of  title     .      .     205-213 

See  Chain  of  Title. 
instruments  filed  for  record  prior  to  acquisition  of 

title 214-216 

See  Record. 
piu'chaser  from  heu-s  without  notice  of  unrecorded 

deed  from  ancestor 217-223 

See  Heirs. 
record  of  conveyances  between  strangers,  void  as  no- 
tice         223 

of  instruments  affecting  chattels,  foUows  property    .  224 

time  given  for  registration  of  deeds 225 

advantage  taken  of  failure  to  register  only  by  pur- 
chaser for  value 226 

record  of  voluntary  deed  effective 226 

assignee  for  benefit  of  creditors 227 

creditor  purchasing  at  execution  sale 228 

notified  by  registry  prior  to  sale 229 

interest  of  mortgagee  not  affected  by  bidding  at 

execution  sale 230 

other  notice  considered  in  connection  with  registra- 
tion           231-272 

actual  notice  of  unregistered  deeds 231-253 

the  extent  to  wliich  affects  subsequent  purchaser       .  231a 
See  Unregistered  Instruments. 


792  INDEX. 

EEGISTRATION  OF  INSTEUIMENTS— Confmwed.  Section 

unregistered  deeds  and  judgments, 

See  Judgments. 

instruments  affecting  an  equitable  interest       .     .     .  254 

pffect  of  withdrawing  from  files  before  recording      .  255 

RELATIONSHIP, 

between  parties  to  contract,  sufficient  to  put  purchaser  on 

inquiry 25 

RESIDENCE, 

respective  places  of,  of  parties  to  bills  and  notes,  as  it  affects 
the  manner  of  giving  notice  of  dishonor       ....     843-929 
See  Bills  and  Notks. 

in  one  place,  and  place  of  business  in  another       ....  852 

what  is  place  of 854 

need  not  be  domicile 855 

having  notice  of  dishonor  at 856 

notice  may  be  served  at,  or  at  place  of  business     ....  863 

RETURN, 

the,  by  which  proof  of  service  is  made 1361-1385 

nature  and  pm-pose  of,  form  and  sufficiency 1362 

when  name  of  officer  not  used 1363 

sei-ved  without  state 1364 

should  show  comphance  with  statute 1365 

to  the  proper  term 1366 

contents  of 1367,  1368 

immaterial  errors 1369 

defects  cured  by  recital  in  judgment 1370 

judgment  by  default  on  insufficient,  void   ....      1371,  1372 

contradicted  by  the  record 1373 

examples  of  defective 1374 

what  deemed  sufficient 1375 

of  service  on  corporation 1376 

inference  from  general  language  of 1377 

cannot  be  contradicted 1378 

exception  to  above 1379 

presumptions  in  favor  of  return 1380 

may  be  amended 1381 

aided  by  presumption 1382 

aided  by  parol  evidence 1383 

aided  by  contents  of  bUl 1384 

confficting  views  as  to  impeaching 1385 

RIGHT  OF  WAY, 

agreement  reserving  should  be  recorded 114 


INDEX.                                         '  T93 

SALES,  Section 

conditional,  of  personal  property 72-75 

See  CorroiTiONAL  Sales. 
judicial, 

See  Judicial  Sales. 
non- judicial  involuntary. 

See  NoN-JuDiCL\.L  Involuntary  Sales. 

by  guardians  and  curators,  notice  by  publication  .     .     .     .  1128 

by  executors  or  administrators 1129,  1130 

SCIENTIFIC  FACTS, 

of  which  courts  take  judicial  notice 1416 

SEALS, 

official,  judicially  noticed 1413 

SECRET  INSTRUCTIONS, 

to  broker  will  not  affect  purchaser  in  good  faith  ....  70 

SERVANT, 

notice  to,  dissolution  of  partnership 503 

occupying  premises  of  master,  not  entitled  to  notice  to  quit  595 
SERVICE, 

of  different  kinds  of  notices 1293-1860 

division  of  subject .  1294 

by  whom  served 1295-1298 

not  by  party  in  interest 1296 

by  unofficial  person 1297 

when  the  officer  whose  duty  to  serve  is  a  party     .     .  1298 

notice  of  motions,  etc 1299 

to  take  depositions .      1243,  1300 

upon  whom  served  —  depositions 1301 

original  process,  on  agent 1302 

upon  foreign  corporations 1303 

statute  for  benefit  of  residents 1304 

reasonableness  of  rule 1305 

federal  judiciaiy  act  in  relation  to 1306 

United  States  circuit  courts  have  Umited  jurisdic- 
tion      1307 

how  jurisdiction  obtained  in  federal  courts     .     .  1308 

how  corjiorations  served 1309 

upon  ticket  agent 1310 

where  statute,  directory  and  permissive     .     .     .  1311 

on  municipal  corporations 1312 

on  city  clerk,  insufficient 1313 

upon  partners 1314 

principal  defendant 1315 

upon  minors 1316 

upon  convicts 1317 


TOi  INDEX. 

SERVICE  —  Continued.  Section 

upon  party  by  wrong  name 1318 

vai-iance  between  name  in  process  and  other  papers  1319 

several  defendants  in  different  counties 1320 

upon  attorney 1331 

in  suit  before  justice  of  peace 1322 

should  not  be  after  his  connection  with  case  has 

ceased 1323 

"due"  notice -.  1324 

application  for  injunction 1325 

construction  of  "  reasonable  notice" 132(5 

time  iixed  by  statute 1327 

admissions 1328 

notice  of  motion  for  new  trial 1329 

time  computed  from  date  of  service 1330 

how  computed 1331 

summons  must  be  for  full  time 1332 

manner  and  mode  of 1334 

personal 1335 

leaving  at  place  of  abode,  not  sufficient 1336 

pei-sonal  upon  attorney 1337 

strict  requirements  as  to  summons 1338 

different  modes  of  j)ersonal  service 1339 

by  reading  original,  or  delivering  writing      ,     .     .  1340 

written,  must  be  by  delivery 1341 

rule  deduced  from  foregoing 1342 

at  place  of  abode 1343,  1344,  1347-1350 

leaving  at  residence  or  place  of  business,  good  only 

when  prescribed  by  statute 1345 

in  what  cases  officer  may  elect 1346 

leaving  at  place  of  residence 1348 

with  member  of  family  to  which  party  belongs      •  1348 

must  be  at  present  place  of  abode 1349 

necessity  for  strict  construction 1350 

actions  against  property  by  posting,  etc 1351 

personal  in  foreign  state 1352 

proof  of 1353 

effect  of  acknowledgment  or  waiver 1354 

by  mail 1355 

chancery  proceedings  in  United  States  courts  .     .     .  1356 

on  board  foreign  vessel 1357 

non-resident,  temj)orarily  within  jurisdiction      .     .     .  1358 

Sunday  or  legal  holiday 1353 

reference  to  other  chapters 1360 

of  notice  to  quit 640 

may  be  waived  .     .     .     .     , 641 


INDEX.  795 

SERVICE  —  Continued.  Sectiox 

of  notice  of  dishonor  of  commercial  paper       ....     843-929 
See  Bills  and  Notes. 

of  notice  of  trial 1170-1173 

of  notice  of  appeal,  upon  attorney 1209 

personal  not  always  required 1217 

of  notice  to  take  depositions 1243-1248,  1251 

of  notice  to  produce  books  and  papers  at  the  trial      .       1287-1292 

personal,  not  indispensable 1292 

SPECIAL  ASSESSMENTS, 

notice  of,  by  publication 1124 

STATE, 

name  of,  should  be  in  address  of  notice  by  mad    ....  927 

STATUTES, 

public,  domestic,  of  which  courts  take  judicial  notice    .     .  1404 

foreign,  not  judicially  noticed 1405 

local  and  special,  not  judicially  noticed 1408 

STOCKS, 

notice  of  infirmities  of  title  to,  from  recital  in  will   .     .     .  333 

STOPPAGE  IN  TRANSITU, 

by  notice  to  carrier 457-480 

object  of,  to  affect  consignee  tlu'ough  carrier     ....  457 

inquiry  confined  to  affect  upon  can-iers 458 

time  of  giving  notice 459 

during  traiisit  —  when  transit  begins  and  ends    .     .     .  460 

before  arrival  and  demand  of  consignee 461 

aiTival  and  demand  to  be  concurrent  facts  ....  462 

effect  of  notice,  to  give  vendor  right  of  possession  .     .  463 

end  of  transitus  by  delivery 464 

fact  of  delivery  determined  by  intent 465 

effect  of  possession  by  consignee 466 

views  of  Chancellor  Kent 468 

storage  in  government  warehouse 469 

notice  to  employee  of  carrier 470 

responsibility  of  carrier 471 

effect  of  assigning  bill  of  lading 472 

must  be  to  ?>ou«  _/!rfe  purchaser 473 

end  of  transit  by  interception 474 

vendor's  right,  takes  precedence  of  judgment  lien  .     .  475 

by  whom  notice  may  be  given 476 

by  factor 477 

by  party  to  conti-act  respecting  goods 478 

by  owner's  guarantor 479 

by  agent 480 


796  lA'DEx. 

STRANGERS,                                                                             Section 
to  the  title,  record  of  conveyances  between,  will  not  affect 
purchasers 223 

STREETS, 

notice  of  opening 1126 

notice  of  dangerous  condition  of 480gf 

SUBSEQUENT  PURCHASER, 

with  actual  notice 231a 

See  PUKCHASER. 

SUIT, 

when  commenced  so  as  to  operate  as  lis  pendens  .     .     .    348,  349 

must  be  continuously  prosecuted 357-359 

notice  of  commencement  of, 

See  Process. 
SUMMONS, 

See  Process. 
SUNDAY, 

or  legal  holiday,  service  of  notice  on 1359 

party  to  bill  or  note  not  bound,  notice  given  on     .     .     .     818-820 

SURETIES, 

entitled  to  notice  of  proceedings  to  obtain  judgment  against 

them 1141 

SURRENDER, 

of  property  held  under  tenancy  from  year  to  year     .     .     .       642 
by  parol  and  acceptance,  effect  of 643 

TAX  SALES, 

notice  of  by  publication 1106-11  "^ 

See  Non-Judicial  Involuntary  Sales. 
TENANCY, 

nature  of,  requiring  notice  to  quit , 

which  does  not  require  notice  to  quit 

from  year  to  year,  proof  of 

by  the  quarter „     , 

from  month  to  month 611 

different  kinds  of,  uncertain 613 

from  week  to  week 614 

See  Landlord  and  Tenant. 
TENANT, 

notice  to  quit,  to  and  by       .     .     .* 578-650 

See  Landlord  and  Tenant. 
TERM, 

of  court  to  be  designated  in  notice  of  trial  ....      1168,  1169 

of  which  judicial  notice  is  taken 1414 

to  which  process  returnable, 

See  Process. 
See  Return. 


INDEX.  797 

TIME,  Section 

when  notice  must  be  acquired  to  affect  purchasers    .     .     .      92a 
of  recording  instruments,  to  be  operative  as  notice     .     .    196-202 

given  for  registration  of  deeds 203 

within  which  notice  of  unrecorded  deed  given,  to  affect 

purchaser  of  real  estate 263 

to  attaching  creditor 264 

when  too  late 265 

after  purchase  at  execution  sale 266 

in  time  if  before  legal  title  conveyed 367 

not  necessarily  within  limits  prescribed  by  statute    .     .      268 
after  death  of  grantor,  too  late  as  against  creditors  .     .      269 

of  giving  notice  of  acceptance  of  guaranty 406 

of  giving  notice  to  quit 607 

regulated  by  statute 608 

expiration  of,  must  be  at  commencement  of  new  term     .      609 

tenancy  by  the  quarter 610 

from  month  to  month 611 

principal  and  accessorial  subject  of  demise 613 

of  acquhing  knowledge  by  agent,  to  affect  principal      .     687-690 
For  giving  notice, 

of  dishonor  of  commercial  paper 776-837 

See  Bills  and  Notes. 

reasonable  time  required 794 

no  exception  to  rule  requiring 827 

of  publication  of  original  process 1069-1079 

of  judicial  sales 1100-1102 

of  non-judicial  sales 1111-1116 

and  place  to  be  stated  in  original  process 1149 

Of  notice  of  trial 1178-1181 

Of  notice  of  motions  and  otlier  proceedings 1301 

Of  notice  of  appeal 1315, 1316 

of  taking  depositions,  should  be  mentioned  in  notice      .     .     1230 

Of  notice  to  take  depositions 1233-1343 

See  Depositions. 

Of  notice  to  produce  books  and  papers 1386-1888 

Of  service, 

See  Seevice. 

TITLE  PAPERS, 

Notice  from  recitals  in 307-336 

general  statement  of  doctrine 307 

equivalent  to  actual  notice 15,^  308 

treated  as  constructive  notice 46,  309 

modification  of  the  rule •'      310 

recitals  in  original  patent 311,  312 


798  ixDEx, 

TITLE  PAPERS  —  Continued.  Section 

sufficient  if  recitals  lead  to  knowledge 313 

must  be  in  same  transaction 314 

should  be  in  same  chain  of  title 315 

recitals  reasonably  cei-tain 316,  317 

example  of  general  recital 318 

uncertainty  of  description 319 

striking  peculiarities  of  recitals 320 

in  will     .• 331 

limitations  upon  effect  of  recitals 322 

recital  of  a  trust 323 

may  be  from  recitals  in  variety  of  instraments  —  will  324 

insti'uments  collateral  to  the  chain  of  title  ....  324 

in  mortgages 325 

in  books  of  i-ecord 326 

in  conveyance  by  statute 327 

in  deed  —  facts  which  may  be  thus  brought  home  to 

purcliaser 328 

in  contract  to  convey 329 

in  deed  —  of  vendor's  lien 330 

who  affected 331 

different  kinds  of  j)roperty 332 

stocks  —  transferred  by  executor 333 

personal  property 334 

inquu-y  excited  by,  should  extend  to  examination  of 

papers 335 

deed  of  real  estate  containing  bill  of  chattels      .     .     .  336 
TORTS, 

notice  by  which  liability  for  may  be  fixed    ....      480gr-480A; 

notice  of,  to  agents  and  servants 695 

TOWNS, 

incorporation  of  judicially  noticed 1411 

TRANSITU, 

stoppage  in 457-480 

See  Stoppage  in  Transitu. 
TREATIES, 

public,  judicial  notice  taken  of 14C6 

TRIAL, 

Notice  of 1162-1181 

required  by  statute 1162 

example  from  New  York  Code   • 1163 

English  rule 1164 

should  not  be  vague  or  misleading 1165 

should  specify  the  suit 1166 

may  be  noticed  for  trial  by  either  party 1167 


INDEX.  799 

TRIAL  —  Continued.  Section 

sufficiently  explicit  as  to  time 1168 

party  notified  may  safely  rely  on  time  designated     .     .  1169 

served  before  issue  joined 1170 

does  not  depend  upon  discretion  of  court 1171 

service  upon  party  or  attorney 1172 

effect  of  continuance 1173 

effect  of  amendment  after  notice 1174 

■waived 1175 

judgment  attacked  for  want  of 1176 

must  be  for  substantial  defects 1177 

statement  of  wrong  day  of  commencement  of  term, 

not  fatal    .     .     .     .  ' 1178 

failure  to  place  on  calendar  —  judgment  set  aside       .  1179 

Wisconsin  Code 1180 

time  under  English  rule 1181 

TROVER, 

actions  of,  wlien  notice  to  produce  books  and  papers  unnec- 
essary    1263 

TRUSTEE, 

insolvency  of,  should  put  purchaser  from,  on  inquiry     .     .  32 

purchaser  from,  decreed  to  perform 57-59 

when  member  of  partnership,  notice  to,  will  affect  partners  59 

TRUSTS, 

purchaser  with  implied  notice  of 21,  22 

sufficient  to  affect  his  conscience,  takes  place  of  original 

trustee 57-59 

notice  of,  from  recitals  in  title  papers. 
See  Title  Papers. 

UNREGISTERED  INSTRUMENTS, 

can  only  be  taken  advantage  of  by  purchaser  for  value      226,  227 
good  against  subsequent  purchaser  at  execution  sale       .    228,  229 

actual  notice  of,  will  bind  subsequent  purchaser  ....  231 
purchaser  at  execution  sale  protected  against,  by  good  faith 

of  execution  creditor 232 

equitable  interference  in  favor  of  holder  of 233 

recorded,  after  adverse  levy,  not  i^refeiTed  to  purchaser  at 

execution  sale 234 

good  against  creditors  with  notice 235 

notice  of,  to  be  effectual,  must  be  subsequent  to  delivery     .  236 

judgment  liens  preferred  to 238 

take  precedence  if  registered  prior  to  execution  sale       .     .  239 
title  under,  superior  to  judgments  subsequently  rendered  .  240 
purchaser  without  notice  of,  may  give  good  title  to  subse- 
quent purcha.ser  with  notice 241,  242 


800  INDEX. 

UNREGISTERED  INSTRUMENTS— Coyt^muecZ.  Section 

but  not  to  fraudulent  grantor,  or  original  purchaser  with 

notice 243 

conflicting  decisions,  as  to  what  is  sufl&cient  notice  of     .     .  244 

express  notice  required          245 

either  actual  or  constructive  held  sufficient 246 

See  Possession. 
See  Title  Papers. 
See  Lis  Pendens. 

cases  holding  notice  of,  ineffectual  against  the  record     .     .  248 

cases  holding  implied  notice  sufficient 249-251 

should  amount  to  imputation  of  fraud 252 

withholding  from  record  no  fraud  upon  those  having 

knowledge 253 

effect  of  withdrawing  from  files  before  recorded  ....  255 

recorded  prior  to  subsequent  j)urchase 256 

vague  information  of,  insufficient  to  affect  subsequent  pur- 
chaser         258 

VAGUE  STATEMENTS, 

of  facts  affecting  title  to  real  estate,  disregarded  by  pur- 
chaser        29,  258 

VENDOR'S  LIEN, 

purchaser  with  notice  of 19 

decreed  to  perform  in  lieu  of  original  contracting  party  .        53 
notice  of,  to  pui-chasers,  from  recitals  in  title  papers       .    329,  330 

from  pendency  of  action  to  foreclose 342a 

VOID  NOTE, 

notice  of  dishonor  of,  unnecessary 1028 

VOUCHER, 

to  waiTanty, 

See  Warranty. 

WAIVER, 

of  hen  on  property,  by  plaintiff,  as  against  purchaser  pen- 
dente lite 367 

of  notice  of  dishonor  of  commercial  paper   ....     930-975 

general  character  of 930,  931 

may  be  antecedent  or  subsequent  to  dishonor     ....       932 
antecedent  waiver  in  writing  —  examples  ....     933-938 

may  be  verbal 939 

estabUshed  by  circumstances 940-956 

by  subsequent  promise  to  pay 957-975 

of  notice  of  trial     . 1175 


INDEX.  SOI 

WAIVER  —  Continued.                              '                                  Section 
of  notice  of  motions,  and  other  court  proceedings  by  appear- 
ance      120:5 

of  notice  of  appeals 1220 

of  notice  to  take  depositions 1253-1255 

of  notice  to  produce  boolis  and  papers,  to  be  offered  in  evi- 
dence   1284 

of  defective  service  of  process  by  general,  but  not  by  special 

appearance 135S,  1859 

of  notice  to  quit 641-G44 

offering  to  let  will  not  amount  to 044 

of  rights  under  notice  to  quit 648 

will  not  be  presumed  from  acceptance  of  rent  by  unau- 
thorized person 649 

nor  from  mere  perm.ission  to  remain  after  expiration  of 
original  term 650 

WAIVER  AND  EXCUSE, 

of  demand  and  notice  to  guarantor.) 426,  427 

of  notice  of  arrival  of  goods  by  common  carrier  ,     .      .      .       576 

of  notice,  should  be  averred  in  pleading 1397 

of  notice  of  dishonor  of  commercial  paper      ....  930-1028 
See  Bills  and  Notes. 
See  Waiveu. 
See  Excuse. 

WARD, 

when  a  party  to  bill  or  note,  may  give  notice  of  dishonor    .       727 
when  notice  may  be  given  to 773 

WARRANTY, 

of  title,  notice  of  breach  of 480c-48Qf 

the  remedy  that  depends  on  notice 480(^ 

form  and  sufficiency  of  notice 4S0ri 

waiver  of  notice 4S0s 

by  whom  given 480/ 

WIFE, 

affected  by  husband's  knowledge,  when  acting  as  her  agent      679 
confined  to  transactions  in  which  he  acts  for  her       .      .      -       630 

W^ILLS, 

registration  of,  operating  as  jiot'ce  to  purchasers       ...       lOS 

notice  from  recitals  in 334,  333 

WITHDRAWAL, 

of  offer,  notice  of,  before  acceptance  will  bo  efce^tual     .     .       385 

WITNESSES, 

subscribing  to  deed,  necessary  to  entitle  to  registry   .  100,  137-139 
need  not  be  all  named  in  notice  to  take  depositions    .     .     .     1227 
51 


802  INDEX. 

WRITING,  Section 

contents  of,  conclusively  presumed  to  be  known  to  party 

executing  same 43 

notice  by  agent  may  be  in,  or  verbal 699 

original  process  required  to  be  in 1147 

notice  of  appeal  to  be  in 1209 

notice  of  taking  depositions,  generally  in 1222 

notice  of  dishonor  of  commercial  paper,  generally  in     .     831,  832 

when  to  distant  parties,  should  always  be 833 


OEC      5   19B^ 


iiiiiiiimir-^ 

D    000  955  049 


